Petition for Writ of Certiorari — Amos Wells, Petitioner v. Eric Guerrero, Director, Texas Department of Criminal Justice, Correctional Institutions Division
Supreme Court briefDec 17, 2025
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No. ______
IN THE
Supreme Court of the United States
AMOS J. WELLS III,
Petitioner,
v.
ERIC GUERRERO, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent.
On Petition for a Writ of Certiorari
to the United States Court of Appeals
for the Fifth Circuit
PETITION FOR A WRIT OF CERTIORARI
ELIZABETH M. WRIGHT
COOLEY LLP
500 Boylston St.
Boston, MA 02116
(617) 937-2300
MATTHEW L. KUTCHER
COOLEY LLP
110 N. Wacker Dr.
Chicago, IL 60606
(312) 881-6500
DREW WEGNER
COHEN DOWD QUIGLEY P.C.
2425 East Camelback Road
Phoenix, AZ 85016
(602) 252-8400
GINGER D. ANDERS
Counsel of Record
XIAONAN APRIL HU
KYLE A. SCHNEIDER
MUNGER, TOLLES & OLSON LLP
601 Massachusetts Ave. NW
Suite 500E
Washington, DC 20001
(202) 220-1100
ginger.anders@mto.com
WILLIAM S. HARRIS
THE LAW OFFICE OF WILLIAM S.
HARRIS
604 E. 4th St., Suite 101
Fort Worth, TX 76102
(817) 718-7060
i
CAPITAL CASE
QUESTION PRESENTED
Petitioner was sentenced to death after his own
counsel presented expert testimony that petitioner’s
genetic makeup made it more likely that he would
commit future violent offenses. That evidence was in
itself sufficient to establish future dangerousness—
one of two necessary conditions in Texas for imposing
a death sentence—and thus effectively conceded the issue, while conferring no countervailing strategic advantages. Nonetheless, in petitioner’s federal habeas
proceeding, the district court denied relief, and the
Fifth Circuit denied petitioner a certificate of appealability. 28 U.S.C. 2253. The question presented is:
Whether trial counsel provides constitutionally ineffective assistance of counsel at the sentencing phase
of a capital trial by presenting evidence that concedes
future dangerousness.
ii
RELATED PROCEEDINGS
The proceedings directly related to this petition are:
Wells v. Guerrero, No. 24-70002, U.S. Court of
Appeals for the Fifth Circuit. Judgment
entered on July 22, 2025. Rehearing denied
on August 19, 2025.
Wells v. Lumpkin, No. 21-CV-1384, U.S.
District Court for the Northern District of
Texas. Judgment entered on November 2,
2023. Petitioner’s motion to alter or amend
the judgment denied on January 5, 2024.
iii
TABLE OF CONTENTS
Page
QUESTION PRESENTED ........................................... i
RELATED PROCEEDINGS........................................ ii
TABLE OF CONTENTS............................................. iii
TABLE OF AUTHORITIES ........................................ v
PETITION FOR A WRIT OF CERTIORARI .............. 1
OPINIONS BELOW .................................................... 1
JURISDICTION........................................................... 1
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED ............................... 1
INTRODUCTION ........................................................ 2
STATEMENT OF THE CASE..................................... 5
A.
Factual Background and Initial
Proceedings ............................................. 5
B.
Proceedings Below ................................ 10
REASONS FOR GRANTING THE PETITION ........ 12
I.
The Fifth Circuit’s Denial of a
Certificate of Appealability Conflicts
with This Court’s Decisions and
Undermines the Sixth Amendment’s
Bedrock Protections. ....................................... 14
A.
Counsel’s concession of future
dangerousness constitutes
deficient performance. .......................... 14
B.
Presentation of the discredited
violence-genetics theory
iv
TABLE OF CONTENTS
(continued)
Page
unquestionably prejudiced
petitioner. ............................................. 25
C.
II.
The Fifth Circuit’s denial of a
certificate of appealability cannot
be reconciled with Strickland,
Nixon, and Buck. .................................. 27
The Question Presented Is Critically
Important. ....................................................... 30
CONCLUSION .......................................................... 32
APPENDICES
APPENDIX A: Opinion of the United States Court of
Appeals for the Fifth Circuit
(July 22, 2025)........................................................... 1a
APPENDIX B: Memorandum Opinion & Order of the
United States District Court for the Northern District
of Texas, Fort Worth Division
(November 2, 2023) ................................................. 13a
APPENDIX C: Memorandum Opinion & Order of the
United States District Court for the Northern District
of Texas, Fort Worth Division
(January 5, 2024) .................................................... 83a
APPENDIX D: Order of the United States Court of
Appeals for the Fifth Circuit Denying Petition for
Rehearing En Banc
(August 19, 2025). ................................................. 100a
v
TABLE OF AUTHORITIES
Page(s)
CASES
Buck v. Davis,
580 U.S. 100 (2017) .... 3, 4, 11-13, 17, 19, 20, 23-32
Florida v. Nixon,
543 U.S. 175 (2004) .......... 3, 4, 12, 15-17, 20, 27-31
Littlejohn v. Royal,
875 F.3d 548 (10th Cir. 2017) .............................. 21
McCoy v. Louisiana,
584 U.S. 414 (2018) .................................. 16, 30, 31
Miller-El v. Cockrell,
537 U.S. 322 (2003) ................................................ 4
Mobley v. Georgia,
265 Ga. 292 (1995) ................................................ 24
Romano v. Oklahoma,
512 U.S. 1 (1994) .................................................. 23
Schriro v. Landrigan,
550 U.S. 465 (2007) .............................................. 21
Strickland v. Washington,
466 U.S. 668 (1984) .................... 2, 9, 12, 14, 16-17,
.............................................................. 22, 27-29, 31
United States v. Cossey,
632 F.3d 82 (2d Cir. 2011) .................................... 24
vi
TABLE OF AUTHORITIES
(continued)
Page(s)
United States v. Cronic,
466 U.S. 648 (1984) .............................................. 15
Ex parte Wells,
No. WR-86,184-01, 2021 WL 5917724
(Tex. Crim. App. Dec. 15, 2021), cert.
denied sub nom., Wells v. Texas, No.
21-7388, 142 S. Ct. 2722 (2022) ............................. 9
Wells v. Texas,
611 S.W.3d 396 (Tex. Crim. App.
2020).................................................................... 5, 9
Wiggins v. Smith,
539 U.S. 510 (2003) ........................................ 21, 27
Zant v. Stephens,
462 U.S. 862 (1983) ........................................ 23, 24
FEDERAL STATUTES
28 U.S.C. 1254 ............................................................. 1
28 U.S.C. 2253 ....................................................... 4, 29
STATE STATUTES
Tex. Code Crim. Proc. Article 37.071 § 2 .................... 6
vii
TABLE OF AUTHORITIES
(continued)
Page(s)
OTHER AUTHORITIES
Paul S. Appelbaum & Nicholas Scurich,
Impact of Behavioral Genetic
Evidence on the Adjudication of
Criminal Behavior,
42 J. Am. Academy of Psychiatry and
the Law 91 (2014) ................................................. 21
1
PETITION FOR A WRIT OF CERTIORARI
Petitioner Amos J. Wells III respectfully petitions
for a writ of certiorari to the United States Court of
Appeals for the Fifth Circuit.
OPINIONS BELOW
The decision of the court of appeals (App. 1a-12a) is
available at 2025 WL 2051145. The court of appeals’
order denying rehearing and rehearing en banc (App.
100a) is unpublished.
The district court’s opinion denying petitioner’s petition for a writ of habeas corpus and request for a certificate of appealability (App. 13a-82a) is available at
2023 WL 7224191. The district court’s opinion denying petitioner’s motion to alter or amend the judgment
(App. 83a-99a) is available at 2024 WL 69161.
JURISDICTION
The judgment of the court of appeals was entered on
July 22, 2025. On August 19, 2025, the court of appeals denied petitioner’s timely petition for rehearing.
On October 28, 2025, Justice Alito extended the time
within which to file a petition for a writ of certiorari to
and including December 17, 2025. The jurisdiction of
this Court is invoked under 28 U.S.C. 1254(1).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The Sixth Amendment to the United States Constitution, U.S. Const. amend. VI, provides in relevant
part: “In all criminal prosecutions, the accused shall
2
enjoy the right * * * to have the Assistance of Counsel
for his defence.”
INTRODUCTION
Petitioner Amos Wells was sentenced to death in
Texas after penalty-phase proceedings in which his
own counsel presented expert testimony that petitioner’s genetic makeup predisposed him to future violence. That testimony was devastating. Petitioner’s
only chance of avoiding the death penalty was to convince the jury that evidence of his future dangerousness was outweighed by evidence of mitigation. But
the defense’s own expert testified, based on debunked
science, that petitioner had a genetic “defect” that
made him many times more likely than others to commit violent offenses—even in prison—and that he
would have difficulty controlling his violent urges in
the future. And having presented that testimony, petitioner’s own counsel told the jury that petitioner, an
African-American man, was a “gangster” who was incurably prone to violence. The defense itself thus conceded future dangerousness, thereby relieving the
prosecution of its burden on that critical aggravating
special issue. The prosecution took full advantage, repeating over and over to the jury that the defense’s own
expert had conceded future dangerousness. Unsurprisingly, given that his own counsel functioned as an
adjunct to the prosecution, petitioner was sentenced to
death.
The Sixth Amendment guarantees criminal defendants the right to effective “assistance of counsel”—that
is, to counsel who “make[s] the adversarial testing process work in the particular case.” Strickland v. Washington, 466 U.S. 668, 690 (1984). This Court has
3
accordingly scrutinized decisions by counsel that tend
to undermine the adversarial process—in particular,
the decision to concede guilt. See, e.g., Florida v.
Nixon, 543 U.S. 175 (2004). In Nixon, the Court upheld a concession of guilt in a capital trial—but on the
premise that because the true focus of the adversarial
proceeding was the sentencing phase, counsel’s concession of guilt could reasonably be expected to yield corresponding strategic advantages for the defendant at
sentencing. Without those strategic advantages, a
concession does nothing more than relieve the prosecution of its burden of proof, distorting the adversarial
process and depriving the defendant of effective assistance.
Counsel’s concession of petitioner’s future dangerousness at sentencing had just that distorting effect.
None of the circumstances that made it reasonable to
concede guilt in Nixon were present here. By conceding a prerequisite to a death sentence at the sentencing stage, counsel vitiated the adversarial process with
respect to the most critical issue in the case—whether
petitioner could avoid death. And given that the sentencing-phase analysis involved discretionary weighing, the fact that petitioner’s own counsel presented
evidence that petitioner was incurably predisposed to
violence made it far less likely that the jury would view
him as deserving of mercy. As this Court has recognized, when defense counsel offers evidence of future
dangerousness, the jury will view it as a particularly
weighty “admission against interest.” Buck v. Davis,
580 U.S. 100, 122 (2017). Making matters worse, the
violence-genetics theory also undermined petitioner’s
only substantial mitigating evidence, and because the
theory itself has been debunked, it invited the jury to
sentence petitioner to death based on an immutable
4
characteristic that was both irrelevant and racially
charged. Counsel’s concession of future dangerousness thus had no possible strategic benefits—and it
eliminated any hope petitioner might have had of
avoiding the death penalty. Under Nixon’s reasoning,
counsel was unquestionably ineffective.
The district court nonetheless rejected petitioner’s
claim, and the Fifth Circuit denied petitioner a certificate of appealability. 28 U.S.C. 2253. This is not the
first time the Fifth Circuit has improperly denied a
certificate of appealability in a capital case involving
counsel’s presentation of aggravating evidence, see
Buck, 580 U.S. at 116-117, and this Court’s intervention is just as urgently warranted here. Jurists of reason could easily “disagree with the district court’s resolution of [petitioner’s] constitutional claims” or “conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell,
537 U.S. 322, 327 (2003). The Fifth Circuit concluded
otherwise only by characterizing the violence-genetics
theory as standard double-edged mitigating evidence
and entirely ignoring Nixon and Buck. But the question whether reasonable jurists could debate an issue
must be considered in light of the relevant precedents
of this Court. The Fifth Circuit failed to do that. And
because section “2253 does not limit the scope of [this
Court’s] consideration of the underlying merits,” Buck,
580 U.S. at 118, this Court should grant certiorari and
review the merits of petitioner’s ineffective-assistance
claim as well as the denial of a certificate of appealability.
5
STATEMENT OF THE CASE
A. Factual Background and Initial Proceedings
1. On July 1, 2013, petitioner became upset with
his pregnant girlfriend, Chanice Reed, and argued
with Reed and her mother outside Reed’s home. Wells
v. Texas, 611 S.W.3d 396, 402-403 (Tex. Crim. App.
2020). The argument culminated in petitioner shooting and killing Reed and her unborn child, her mother,
and her ten-year-old brother. Ibid. An hour later, petitioner surrendered himself to law enforcement. Id.
at 404-405. A video recording of petitioner’s initial
custody and interrogation shows petitioner sobbing
and apologizing to the detective when informed that
the victims had died. See Pet. C.A. Br. 40-41, 51 (petitioner cried and expressed remorse in contemporaneous interviews); ROA.13489 1; see also ROA.1350113504. Petitioner ultimately confessed to the killings.
611 S.W.3d at 404-405.
Petitioner was charged with capital murder and the
trial court appointed William Ray and Stephen Gordon
as his counsel.
Wells, 611 S.W.3d at 405; see
ROA.5115, ROA.5137-5141. On November 3, 2016, a
jury found petitioner guilty of capital murder.
ROA.5810.
2. The penalty phase of petitioner’s trial followed.
Under Texas law, the jury had to answer two special
issues to decide whether petitioner would receive the
death penalty. First, the jury was required to consider
“ROA” refers to the Record On Appeal filed in the court of appeals.
1
6
whether the prosecution had proven beyond a reasonable doubt that there was a “probability that the defendant would commit criminal acts of violence that
would constitute a continuing threat to society.” Tex.
Code Crim. Proc. art. 37.071 §§ 2(b)(1), (c). Second, if
the jury answered “yes” to the first special issue, it
then had to consider whether a “sufficient mitigating
circumstance or circumstances” warranted imposing
life imprisonment without parole rather than death.
Id. art. 37.071 § 2(e)(1). Petitioner could be sentenced
to death only if the jury unanimously answered “yes”
to the first issue and “no” to the second. Id. art. 37.071
§§ 2(d)(2), (f)(2), (g).
a. Defense counsel’s primary theory of mitigation
was that petitioner was genetically predisposed to violence. In support of that “violence genetics” theory, defense counsel presented expert testimony from psychiatrist Dr. William Bernet.
ROA.12802; see
ROA.12825.
Dr. Bernet testified that petitioner had a “poorly
functioning” Monoamine Oxidase A (“MAOA”) gene.
ROA.13033, ROA.13073. That defective gene, together with petitioner’s adverse childhood experiences, supposedly “increased the probability that he
would act in a violent” manner going forward.
ROA.13076. Dr. Bernet further testified that an allegedly landmark study demonstrated that 32% of children who had the defective gene and were moderately
but not severely maltreated “had been convicted of a
violent crime.” ROA.13057. Dr. Bernet therefore
opined that petitioner, who Dr. Bernet believed met
those criteria, was “four and a half times more likely”
than “a typical person” to engage in violence in the future. ROA.13077-13078 (emphasis added). Dr. Bernet
7
also told the jury that the science underpinning the violence-genetics theory was “valid.” ROA.13020. But
in reality, the “scientific community[]” harbored “serious and widespread doubts about” the validity of the
studies on which Dr. Bernet relied. ROA.15138.
The prosecution, for its part, seized upon Dr.
Bernet’s testimony as demonstrating petitioner’s future dangerousness—thereby establishing the first
prerequisite to impose the death penalty under Texas
law. In closing arguments, for example, the State repeatedly emphasized that “this is the easy answer, and
they conceded it through all their experts.” ROA.13793
(emphasis added); see, e.g., ROA.13751, ROA.13791.
Indeed, the State urged: “Have we proven to you
there’s a probability that the Defendant would commit
criminal acts of violence that constitute a continuing
threat to society? * * * Their own expert tells you he is
going to be dangerous.” ROA.13790-13791 (emphasis
added).
Defense counsel tried to use Dr. Bernet’s testimony
to suggest that petitioner could not be blamed for his
genetic makeup. But that testimony ended up underscoring that petitioner would likely be violent in the
future. Dr. Bernet testified that individuals with the
defective MAOA gene and adverse childhood experiences have a “harder” time “control[ling] anger.”
ROA.13044. And Dr. Bernet testified that petitioner
had, for instance, “many times” gotten “very angry, out
of control,” which “indicate[d] that this gene-environment interaction was happening all through his childhood and his adolescence and his young adulthood.”
ROA.13075.
8
Defense counsel also presented evidence about petitioner’s difficult childhood. Witnesses testified, among
other things, that petitioner frequently witnessed domestic violence and was abandoned by his father. See,
e.g., ROA.13329 (expert testimony describing “complex
developmental trauma, which is sort of like childhood
posttraumatic stress disorder, but it’s more toxic”). 2
But the force of that evidence of childhood mistreatment was undermined by Dr. Bernet’s testimony regarding “violence genetics.” In particular, Dr. Bernet
testified that the violence-genetics theory turned on
the proposition that petitioner had experienced only
moderately adverse childhood experiences. That is because children who have suffered extreme abuse, Dr.
Bernet asserted, would act out violently regardless of
whether they have a defective MAOA gene.
ROA.13045. Dr. Bernet therefore emphasized his view
that petitioner had experienced—at most—just the
“middle
range”
of
childhood
maltreatment.
ROA.13045. Indeed, under one prominent study’s definition of maltreatment, Dr. Bernet explained, petitioner had not experienced childhood maltreatment at
all. ROA.13084.
The State took full advantage of that defense testimony. For example, the prosecution emphasized in
closing arguments Dr. Bernet’s concession that petitioner “would not have been considered to have * * *
severe childhood maltreatment.” ROA.13754; see
ROA.13799. The prosecution contended that Dr.
Bernet’s concession undercut any mitigating value
The trial court excluded evidence of petitioner’s expression of
remorse upon turning himself in. See App. 8a-12a.
2
9
that petitioner’s upbringing might have otherwise
had.
b. The jury returned the penalty-phase findings
that the State sought. Specifically, the jury found (1)
a probability that petitioner would commit violent
crimes in the future, and (2) a lack of mitigating circumstances justifying a sentence short of death.
ROA.5860-5861. The trial court thus sentenced petitioner to death. ROA.5860-5861.
3. Petitioner subsequently filed a direct appeal in
the Texas Court of Criminal Appeals (“TCCA”). The
TCCA affirmed petitioner’s conviction and death sentence. See Wells, 611 S.W.3d at 402.
4. In 2019, petitioner sought post-conviction relief
in state court. ROA.16824. As relevant here, petitioner contended that his trial counsel were ineffective
for
presenting
the
violence-genetics
theory.
ROA.16865. The state court recommended denying
the claim, adopting the State’s proposed conclusion
that trial counsel made a reasonable strategic decision
to present that theory to the jury and that petitioner
was not prejudiced by the approach. ROA.1779617798.
The TCCA denied relief. Ex parte Wells, No. WR86,184-01, 2021 WL 5917724 (Tex. Crim. App. Dec. 15,
2021), cert. denied sub nom., Wells v. Texas, No. 217388, 142 S. Ct. 2722 (2022). With regard to petitioner’s trial-counsel ineffective assistance of counsel
claim, the court stated without elaboration that “Applicant fails to meet his burden under Strickland v.
Washington, 466 U.S. 668 (1984), to show by a preponderance of the evidence that his counsel’s
10
representation fell below an objective standard of reasonableness and that there was a reasonable probability that the result of the proceedings would have been
different but for counsel’s deficient performance.” Id.
at *1.
B. Proceedings Below
1. In March 2023, petitioner filed an amended federal habeas petition. ROA.517. As relevant here, petitioner contended that trial counsel was ineffective for
presenting the violence-genetics theory, including via
Dr. Bernet’s expert testimony. ROA.580-596. 3
The district court denied the petition and also denied a certificate of appealability with respect to all issues. App. 13a-82a. The district court rejected petitioner’s ineffective-assistance claim based on the violence-genetics theory on the ground that defense counsel made a reasonable strategic decision to present
double-edged evidence that could have lessened petitioner’s moral blameworthiness in the eyes of the jury.
App. 56a-58a. The court acknowledged in passing that
the evidence could suggest future dangerousness, but
did not otherwise analyze its harmful effects. The
court also stated that petitioner had not demonstrated
the requisite prejudice. Ibid. Petitioner subsequently
filed a motion to alter or amend the district court’s
judgment, which the court denied. App. 83a-99a.
2. Petitioner then moved for a certificate of appealability in the Fifth Circuit. In particular, petitioner
argued that Dr. Bernet’s expert testimony established
Petitioner also raised additional arguments that are not at issue
in this petition.
3
11
one of the prerequisites to a death sentence: that he is
likely to commit violent crimes in the future. At the
same time, the testimony had no mitigating value—
and in fact only undercut the remainder of the mitigation case. Under those circumstances, trial counsel’s
decision could not be characterized as a strategic
choice warranting deference. Petitioner further contended that defense counsel’s presentation of the violence-genetics testimony constituted deficient performance under Buck v. Davis, 580 U.S. 100 (2017). And
petitioner explained how counsel’s presentation of the
violence-genetics testimony plainly caused prejudice.
The Fifth Circuit rejected those arguments and denied a COA. The court held that “[j]urists of reason
would not debate the district court’s resolution of” petitioner’s ineffective-assistance claim based on the violence-genetics theory. App. 6a. Petitioner’s trial
counsel, the court reasoned, “acknowledged all along
that this evidence could support a positive finding on
the issue of future violence.” Ibid. In support of that
notion, the court below noted a “memorandum of trial
counsel submitted in 2016” that “acknowledg[ed] this
evidence ‘could potentially help the State’s efforts’ to
show a probability of future violence.” Ibid. (quoting
ROA.15978). But the court reasoned that because
“[c]ounsel nonetheless believed” the violence-genetics
evidence “could be a sufficiently mitigating fact,” the
choice to present it fell “within the heartland of ‘strategic decisions’” that are reserved for counsel. App. 6a7a. That was “why the federal district court rejected
[petitioner’s] claim,” and, in the court of appeals’ view,
“the district court’s treatment of this claim” is not “debatable among jurists of reason.” App. 7a.
12
3. The Fifth Circuit subsequently denied petitioner’s rehearing petition in an unreasoned per curiam order. App. 100a.
REASONS FOR GRANTING THE PETITION
At sentencing, defense counsel conceded petitioner’s
future dangerousness by presenting expert evidence
that petitioner had a genetic anomaly that predisposed
him to violence and made it difficult to control his violent impulses. That evidence was in itself sufficient to
enable the jury to answer “yes” to the future-dangerousness special issue that was a prerequisite to imposing a death sentence. At the same time, the evidence
offered no possible advantage for petitioner: it was
only aggravating, not mitigating, and in fact its introduction undermined petitioner’s only other mitigating
evidence. And as this Court has recognized in a materially similar context, the evidence doubtlessly had a
powerful effect on the jury, as it came from a purportedly qualified expert psychiatrist who was testifying
for the defense. Buck v. Davis, 580 U.S. 100 (2017).
Counsel’s introduction of the violence-genetics evidence was clearly ineffective under the principles set
forth in two lines of this Court’s precedents. First, because counsel’s core Sixth Amendment function is to
“make the adversarial testing process work in the particular case” by zealously advocating for the defendant, Strickland v. Washington, 466 U.S. 668, 690
(1984), this Court has carefully scrutinized defensecounsel concessions. Florida v. Nixon, 543 U.S. 175
(2004). This Court has held that conceding the defendant’s guilt in a capital case is not ineffective if counsel
reasonably anticipates that the concession will benefit
the defendant at the all-important sentencing phase.
13
Id. at 189-191. This Court has not had occasion to consider concessions of future dangerousness at sentencing. But Nixon’s caution about concessions of guilt applies a fortiori to concessions of future dangerousness:
by conceding a prerequisite to a death sentence, those
concessions materially increase the likelihood that the
defendant will be sentenced to death. And it should be
self-evident that a concession of future dangerousness
by the defendant’s own counsel will be particularly
devastating before the jury, and will undermine any
effort to persuade the jury that mitigating factors warrant mercy.
Second, counsel’s presentation of the violence-genetics evidence invited the jury to sentence petitioner
to death based on irrelevant immutable characteristics. In Buck, this Court held that counsel was ineffective for presenting evidence that the defendant was
more likely to be violent in the future because of his
race—an immutable and irrelevant characteristic.
580 U.S. at 121. Counsel here did not make an explicitly racial argument. But petitioner’s genetic makeup
was just as irrelevant and immutable: the science underlying the violence-genetics theory had been debunked, meaning that counsel in effect invited the jury
to sentence petitioner to death based on his genetic
characteristic that bore no relation to any relevant
sentencing consideration. Making matters worse, although race was not explicitly an issue, the argument
that petitioner, an African-American man, was genetically predisposed to violence carried an unacceptable
risk of evoking “noxious” racial stereotypes in the capital-sentencing context. Ibid.
Petitioner’s ineffective-assistance claim thus flows
directly from bedrock Sixth Amendment principles. In
14
nonetheless denying a certificate of appealability, the
Fifth Circuit disregarded this Court’s precedents and
failed to recognize that reasonable jurists could at
least disagree as to how those precedents apply to petitioner’s case.
The questions presented here are also critically important. This Court has regularly granted certiorari
to address whether and when the Sixth Amendment
permits defense counsel in a capital case to make certain concessions at trial in the hopes of avoiding the
death penalty. This Court should grant certiorari and
address both the denial of a certificate of appealability
and the merits of petitioner’s ineffective-assistance
claim.
I.
The Fifth Circuit’s Denial of a Certificate
of Appealability Conflicts with This
Court’s Decisions and Undermines the
Sixth Amendment’s Bedrock Protections.
A.
Counsel’s concession of future dangerousness constitutes deficient performance.
1. This Court’s precedents clearly establish that
counsel performs deficiently by presenting aggravating evidence that establishes a prerequisite for the
death penalty while providing no meaningful benefit
in mitigation. Counsel’s fundamental duty is to ensure
“the proper functioning of the adversarial process” by
advocating for a favorable outcome—here, by advocating that the jury not impose a death sentence. Strickland, 466 U.S. at 685-686. When trial counsel fails to
“render the trial a reliable adversarial testing process,” he or she has rendered ineffective assistance. Id.
15
at 688; United States v. Cronic, 466 U.S. 648, 655-656
(1984).
Because counsel’s primary function is to ensure the
fairness and reliability of the adversarial process, this
Court has carefully scrutinized counsel’s concession of
the defendant’s guilt. In Nixon, this Court held that
defense counsel may constitutionally concede guilt at
the guilt phase (at least when the defendant is silent
as to that course) in the hope that doing so will help
the defendant avoid a death sentence at the penalty
phase. 543 U.S. at 192. But that holding was founded
on a critical premise: that conceding guilt would not
significantly undermine the adversarial process, and
could have important strategic benefits at the penalty
stage. This Court emphasized that “the gravity of the
potential sentence in a capital trial and the proceeding’s two-phase structure vitally affect counsel’s strategic calculus.” Id. at 190-191. Because “[p]rosecutors
are more likely to seek the death penalty * * * when
the evidence is overwhelming,” “[c]ounsel therefore
may reasonably decide to focus on the trial’s penalty
phase” in the hopes that conceding guilt will lead the
jury to view the defendant’s mitigation case more favorably or credibly. Id. at 191-192. At the same time,
the Court recognized that “such a concession” “might
present a closer question” in a mine-run trial where
prosecutors have not sought the death penalty, id. at
190-191—because in that case, conceding guilt would
cede the adversarial process with respect to the only
question before the jury, with no corresponding benefits at any subsequent sentencing phase.
Nixon embodies the fundamental principle that although counsel has leeway to make strategic decisions,
a decision to concede guilt has particularly concerning
16
implications for the adversarial process. 4 Therefore,
under Nixon’s reasoning, counsel’s concession of an ultimate issue on which the prosecution bears the burden satisfies Strickland only to the extent that the
strategy may reasonably yield commensurate advantages with respect to other aspects of the adversarial process. Indeed, the very concept of a “strategic
judgment,” as explicated in cases like Strickland and
Nixon, assumes that counsel reasonably anticipates
that the defendant will receive a net advantage from
the chosen course. Strickland, 466 U.S. at 688, 690691.
Although no concession of future dangerousness
was at issue in Nixon, the import of Nixon’s reasoning
is that such concessions raise even greater concerns
than concessions of guilt. Counsel’s concession of guilt
at the guilt phase of a capital trial can lessen the emphasis on evidence of the offense and build credibility
for the sentencing phase—the phase that Nixon recognized is the main event in most capital trials. 543 U.S.
at 191. By contrast, counsel’s concession of future dangerousness occurs during that all-important sentencing phase and relieves the prosecution of its burden on
a critical prerequisite to a death sentence. The concession, moreover, tells the jury that the defendant’s own
counsel has concluded that the defendant is incurably
violent. Given that the jury has leeway to weigh future
In McCoy v. Louisiana, 584 U.S. 414 (2018), this Court clarified
that “a defendant has the right to insist that counsel refrain from
admitting guilt, even when counsel’s experienced-based view is
that confessing guilt offers the defendant the best chance to avoid
the death penalty.” Id. at 417. That rule flows from the defendant’s right to decide the objectives of the defense, including the
right to insist on maintaining an adversarial posture vis-à-vis the
prosecution.
4
17
dangerousness against mitigation to reach what it
views as a just verdict, there is a significant chance
that the jury will give evidence of future dangerousness offered by the defense outsize weight in its analysis. This Court has recognized that very effect, explaining that “[w]hen a defendant’s own lawyer puts
in the offending evidence, it is in the nature of an admission against interest, more likely to be taken at
face value.” Buck, 580 U.S. at 122. Thus, despite counsel’s ordinary leeway to make strategic decisions, the
principles set forth in Nixon, Buck, and Strickland require that counsel’s concession of future dangerousness be upheld only to the extent that it can be justified by corresponding advantages to the defendant in
the sentencing phase.
2. Those principles establish that counsel’s presentation of evidence that petitioner was genetically predisposed to violence constituted ineffective assistance.
That evidence not only established future dangerousness—a prerequisite to imposing death—it also seriously undermined petitioner’s mitigation case. Stated
differently, the violence-genetics evidence had zero
benefit to petitioner, direct or indirect; its sole value
was to the prosecution. Under those circumstances,
counsel’s use of the testimony cannot be defended as a
reasonable strategic judgment.
a. The expert testimony that trial counsel elicited
affirmatively established future dangerousness,
thereby relieving the prosecution of its burden. Defense expert Dr. Bernet testified that petitioner was
genetically predisposed to violence because his defective MAOA gene made it more difficult for him to control his anger. ROA.13033, ROA.13073. Specifically,
Dr. Bernet testified that while 7% of people without
18
the violence gene go on to be convicted of a violent
crime, people like petitioner—those with the violence
gene and adverse childhood experiences—are “four
and a half times” more likely to commit violent acts.
ROA.13057 (emphasis added); see also ROA.13078
(similar testimony). The upshot of that evidence was
that 32% of people with a similar profile to petitioner
carry out violent crimes in the future. ROA.13057.
The unmistakable implication of that testimony
was that petitioner would be violent in the future. The
Fifth Circuit discounted the import of Dr. Bernet’s testimony on the ground that it was expressed in statistical probabilities. App. 6a-7a. But at the time of Dr.
Bernet’s testimony, petitioner had just been convicted
of a violent offense. Thus, whatever the predictive import of Dr. Bernet’s stated probabilities for someone
who had not previously committed violent acts, the indisputable conclusion of Dr. Bernet’s testimony as applied to petitioner, given his history of violence, was
that petitioner was within the 32% of people with the
gene who would commit violent crimes in the future.
Dr. Bernet confirmed as much: when asked to confirm
that he was “telling this jury * * * this defendant’s going to be violent in the future,” Dr. Bernet answered
affirmatively, stating that petitioner would have difficulty “control[ling] his anger” in the future.
ROA.13077. And because genetics are an immutable
characteristic, the clear import of Dr. Bernet’s testimony was that anyone with the violence gene who had
experienced the requisite level of childhood maltreatment—like petitioner—was incurably predisposed to
commit violent acts, regardless of treatment or environment.
19
Counsel’s presentation of Dr. Bernet’s violence-genetics testimony therefore unquestionably conceded
future dangerousness. The future-dangerousness inquiry asked the jury to decide whether there was
“more than a ‘possibility’” that petitioner might be violent in the future. ROA.7551-7552, ROA.7575 (trial
court forbidding defense counsel from suggesting that
“probability” means more “than 50/50” or “more likely
* * * than something else”); see also, e.g., ROA.71597161, ROA.7290, ROA.7552, ROA.10907-10908. Dr.
Bernet’s testimony—that petitioner, who had just
been convicted of a violent crime, had an incurable genetic mutation that predisposed him to violence and
made it difficult to control his anger—easily satisfied
that standard. And because this testimony was presented on petitioner’s behalf by someone qualified as
an expert, the testimony was bound to carry particular
weight with the jury. Buck, 580 U.S. at 120-121. Reasonable jurors would have concluded (and apparently
did conclude) that there was far more than a possibility that petitioner would be violent in the future; with
his asserted genetic makeup, future violence was a
near certainty.
Any doubt that defense counsel conceded future
dangerousness is eliminated by the prosecution’s extensive use of the testimony. The prosecution emphasized that the future dangerousness special issue “is
the easy answer, and they conceded it through all their
experts.” ROA.13793 (emphasis added). The prosecution repeatedly reminded the jury that Dr. Bernet had
“agreed” that petitioner “is dangerous” and that, given
petitioner’s genetic predisposition towards violence,
Dr. Bernet had “agreed” that petitioner was “never going to not be dangerous.” ROA.13751 (emphasis
added); see also ROA.13751 (prosecution argument
20
that Dr. Bernet “agreed” that petitioner “will continue
to be dangerous”). In closing, the prosecution impressed upon the jury that Dr. Bernet’s testimony was
“telling us [petitioner is] going to be dangerous”—and
that Dr. Bernet’s testimony was “all about” future dangerousness, and nothing more. ROA.13791.
Defense counsel thus relieved the prosecution of its
burden of establishing future dangerousness—the key
prerequisite to a death sentence, and the “focus of the
proceeding.” Buck, 580 U.S. at 120. And because Dr.
Bernet testified for the defense, neither side had any
incentive to test his opinions on cross-examination. As
a result, counsel’s decision to introduce the violencegenetics testimony completely vitiated the adversarial
process with respect to future dangerousness.
b. Conceding future dangerousness held no possible
strategic advantage for petitioner. Nixon, 543 U.S. at
190-192. Unlike in Nixon, the concession occurred at
the sentencing phase, when the only question left was
whether petitioner’s future dangerousness was outweighed by mitigating factors. The violence-genetics
evidence established future dangerousness. But it did
not in any respect help petitioner persuade the jury
that mitigating factors outweighed future dangerousness. Quite the opposite.
To begin, evidence that petitioner was genetically
predisposed to behave violently had no mitigating
value in itself. To be sure, the purportedly genetic
origin of petitioner’s alleged predisposition to violence
meant that petitioner’s condition was not his “fault.”
But neither would it be a defendant’s fault that he was
diagnosed as a psychopath—yet an argument that a
defendant should receive mercy because he was a
21
psychopath would hardly convince the average juror. 5
The same is true of the violence-genetics theory. It
evoked cultural fears of genetically-primed killers
without evoking any countervailing sympathy (unlike
afflictions such as mental illness or disability). And
here, the evidence carried another significant risk, of
conjuring powerful racial stereotypes. See pp. 24-25,
infra. Indeed, petitioner’s own counsel encouraged
the jury to consider petitioner a “defect” and a “gangster.” ROA.13768, ROA.13773. It is difficult to see
how that framing could have possibly persuaded the
jury to spare petitioner’s life, and competent counsel
would have recognized as much.
Moreover, the violence-genetics testimony undermined petitioner’s only other significant mitigation argument: that he had endured a traumatic childhood.
The strength of that argument turned on emphasizing
the extent and seriousness of petitioner’s childhood
maltreatment to win the jury’s sympathies. See Wiggins v. Smith, 539 U.S. 510, 534-535 (2003)
Indeed, evidence that a defendant cannot manage his violent
impulses—for whatever reason—is unsurprisingly understood to
have little mitigating force. See, e.g., Paul S. Appelbaum & Nicholas Scurich, Impact of Behavioral Genetic Evidence on the Adjudication of Criminal Behavior, 42 J. Am. Academy of Psychiatry
and the Law 91, 91 (2014) (participants in study “imposed longer
prison sentences” when told a hypothetical defendant was genetically predisposed towards criminal behavior and had been
abused as a child); Schriro v. Landrigan, 550 U.S. 465, 480-481
(2007) (characterizing defendant’s mitigation evidence, including
claim that he “may also have been genetically predisposed to violence,” as “weak” (citation omitted)); Littlejohn v. Royal, 875 F.3d
548, 562 (10th Cir. 2017) (evidence that defendant struggled with
impulse-control “typically tends to offer little, if any, quality mitigating evidence and, actually, may come with a sharp aggravating-evidence component”).
5
22
(characterizing evidence of “severe privation and
abuse” in the “first six years of [the defendant’s] life”
as “powerful” mitigating evidence). The jury heard
that petitioner frequently witnessed domestic violence
as a child and had been abandoned by his father.
ROA.13342-13343; see ROA.13329 (expert testimony
about petitioner’s “complex developmental trauma”).
But in the very next breath, the defense minimized petitioner’s childhood mistreatment. Because the violence-genetics theory relied on petitioner having suffered moderate—but not severe—childhood maltreatment, Dr. Bernet downplayed the severity of petitioner’s mistreatment. ROA.13045. In fact, Dr. Bernet
testified that under the definition of childhood maltreatment in a prominent study of the violence gene,
petitioner did not experience any maltreatment at all.
ROA.13084, ROA.13103. That assertion all but eviscerated petitioner’s otherwise persuasive mitigation
case.
As with future dangerousness, the prosecution predictably exploited Dr. Bernet’s testimony. The prosecution argued to the jury that even the defense’s expert
had conceded petitioner did not experience “severe
childhood maltreatment.” ROA.13754. Thus, trial
counsel’s choice to present the violence-genetics testimony not only helped the prosecution establish a prerequisite for imposing a death sentence, it undermined
petitioner’s best—and only—chance of appealing for
mercy. No rational defense counsel would opt for such
a senseless course of action. Because trial counsel’s
decision to present this evidence failed to “make the
adversarial testing process work” in petitioner’s case,
Strickland, 466 U.S. at 690, counsel’s conduct fell outside the range of professionally competent assistance.
23
3. Counsel’s presentation of the violence-genetics
evidence constituted deficient performance for a second, independent reason: it invited the jury to sentence petitioner to death based on an irrelevant immutable characteristic.
a. In Buck, this Court held that counsel who introduced evidence that the defendant was more likely to
be violent in the future because he was African American provided ineffective assistance. This Court emphasized that a defendant’s race is both immutable
and completely irrelevant to the capital sentencing inquiry. 580 U.S. at 119. As Buck explained, “[d]ispensing punishment on the basis of an immutable characteristic flatly contravenes th[e] guiding principle” that
“[o]ur law punishes people for what they do, not who
they are.” Id. at 123. Thus, “[n]o competent defense
attorney would introduce such evidence about his own
client.” Id. at 119.
Although the immutable trait at issue in Buck was
race, this Court has made clear that it is unconstitutional to sentence a defendant to death based on any
immutable characteristic that bears no relation to the
sentencing inquiry into moral culpability and future
dangerousness. See Buck, 580 U.S. at 124 (noting that
departure from “basic principle” of individualized sentencing was “exacerbated because it concerned race”
(emphasis added)); Zant v. Stephens, 462 U.S. 862, 885
(1983) (a State may not sentence the defendant to
death based on purportedly aggravating factors that
are “irrelevant to the sentencing process”); Romano v.
Oklahoma, 512 U.S. 1, 7 (1994). It follows that, as
Buck held, it is ineffective assistance for counsel to introduce such evidence at the sentencing phase.
24
b.
The violence-genetics evidence encouraged the
jury to sentence petitioner to death based on an immutable genetic trait that bore no relation to any permissible sentencing consideration. At the time of petitioner’s sentencing, there was no scientifically reliable
connection between petitioner’s MAOA gene and any
predisposition to violence. In fact, the violence-genetics theory had been thoroughly debunked.
ROA.15134; see ROA.12836 (MAOA studies are
“fraught with problems with methodology, interpret[ive] flaws, including inconsistencies and * * *
loose standards for replication”). Indeed, Dr. Bernet’s
testimony relied on “scientific studies that had been
strongly and publicly criticized as potentially wrong or
misleading.” ROA.15144; see ROA.15138. And courts
had already long concluded that this sort of evidence
was unreliable. See, e.g., Mobley v. Georgia, 265 Ga.
292, 293 (1995).
It therefore would have been “patently unconstitutional” for the prosecution to argue that Wells should
be sentenced to death based on his genetic makeup
alone, when there was no link between the MAOA
gene and a propensity for violence. Buck, 580 U.S. at
119 (citing Zant, 462 U.S. at 885); cf. United States v.
Cossey, 632 F.3d 82, 88 (2d Cir. 2011) (“undisput[ably]
* * * impermissible” for a sentencing court to make a
finding about the defendant’s likelihood to re-offend
based on an “unsupported theory of genetics”). By doing exactly that, defense counsel performed deficiently.
Moreover, by asserting that petitioner’s genes predisposed him to violence, while at the same time referring to petitioner as a “gangster,” ROA.13768,
ROA.13773, counsel created an unacceptable risk that
25
the jury would sentence petitioner to death based on a
“powerful racial stereotype—that of black men as ‘violence prone.’” Buck, 580 U.S. at 121 (citation omitted).
Counsel even exacerbated that risk by observing during an examination at the penalty phase that “young
black kids with guns is probably not a good situation.”
ROA.13694. To be sure, no party in this case explicitly
pressed any racial stereotype in the manner of Buck.
But any competent counsel would have recognized that
presenting his African-American client as a “black
kid[] with [a] gun[]” and a violence-prone “gangster”—
a label with unmistakable racial overtones—could
make race highly salient in the future-dangerousness
analysis. And given that future dangerousness was
the central question at sentencing, counsel’s presentation created the risk that the jury would “mak[e] a decision on life or death on the basis of race.” Buck, 580
U.S. at 121. Any competent counsel would have
avoided that unacceptable risk by refraining from presenting the violence-genetics evidence.
B.
Presentation of the discredited violence-genetics theory unquestionably prejudiced petitioner.
Buck leaves no doubt that counsel’s concession of future dangerousness prejudiced petitioner. There, this
Court found prejudice where Texas’s “future dangerousness” special issue was a critical focus of the penalty phase proceedings; the evidence of future dangerousness other than the expert’s testimony about race
was not overwhelming; and the expert testimony that
Buck’s race predisposed him to violence likely carried
weight with the jury as “hard statistical evidence.”
580 U.S. at 121. Critically, the Court explained,
“[w]hen a defendant’s own lawyer puts in the offending
26
evidence, it is in the nature of an admission against
interest, more likely to be taken at face value.” Id. at
122. Accordingly, this Court easily concluded that
Buck “demonstrated prejudice,” notwithstanding the
“brutality of Buck’s crime and his lack of remorse.” Id.
at 120-122.
This case is materially indistinguishable. Without
Dr. Bernet’s expert testimony, the jury may well have
declined to find future dangerousness. As in Buck, the
bulk of petitioner’s past violence (including the underlying offense itself) had occurred in the context of romantic relationships. ROA.13747-13750. But as this
Court explained in Buck, that evidence was not especially persuasive, because if the defendant was sentenced to life in prison, “no such romantic relationship
would be likely to arise.” 580 U.S. at 120-121. “A jury
could conclude that those changes would minimize the
prospect of future dangerousness.” Id. at 121. But like
Buck’s race, petitioner’s genetic makeup would not
change in prison. Ibid. The prosecution here also cited
one alleged assault incident in prison, see ROA.1374513751, but the defense presented testimony that petitioner was otherwise a well-behaved inmate, see
ROA.12287-12288.
As in Buck, then, the defense-expert testimony
likely carried substantial weight. Defense counsel presented Dr. Bernet as “as a medical expert bearing the
court’s imprimatur,” 580 U.S. at 121, who could provide the jury with seemingly concrete studies replete
with statistics expressing relative predisposition to violence. Worse yet, the fact that this “hard statistical
evidence” was provided by the defense enhanced its
credibility with the jury immeasurably. Ibid. All told,
had petitioner’s counsel not presented Dr. Bernet’s
27
expert testimony that petitioner would be a future
danger, there is a reasonable probability that “at least
one juror would have harbored a reasonable doubt”
about whether petitioner was “likely to be violent in
the future.” Id. at 120.
Moreover, here the violence-genetics testimony had
a prejudicial effect absent in Buck: as explained above,
to make the violence-genetics theory work, Dr. Bernet
had to tell the jury that petitioner’s childhood mistreatment was not severe. See pp. 21-22, supra. Evidence of childhood mistreatment is ordinarily “powerful” mitigating evidence, Wiggins, 539 U.S. at 534—
but here, petitioner’s own expert downplayed that evidence, undermining the only evidence presented at
sentencing that could evoke the jury’s sympathy. Absent that testimony, “at least one juror” could well
have given more weight to the mitigation case. See
Buck, 580 U.S. at 120.
C.
The Fifth Circuit’s denial of a certificate of appealability cannot be reconciled with Strickland, Nixon, and
Buck.
The Fifth Circuit held that reasonable jurists would
not debate the proposition that counsel made a reasonable strategic judgment to present “double-edged” evidence. The court relied on trial counsel’s assertion
that the violence-genetics evidence “could be a sufficiently mitigating fact,” and held that this statement
placed counsel’s decision to present the evidence in the
“heartland” of strategic decisions that are presumptively reasonable. App. 6a-7a. The court then held
that reasonable jurists would not debate the district
court’s holding that petitioner had not rebutted the
28
presumption of reasonableness. App. 7a. That conclusion cannot be reconciled with this Court’s decisions in
Nixon, Strickland, and Buck.
At the outset, the district court’s conclusion that
counsel did not concede future dangerousness (which
the court of appeals appears to have adopted, App. 6a7a) was erroneous. At a bare minimum, it was debatable by reasonable jurists. The district court asserted
that Dr. Bernet’s testimony that 32% of people with
petitioner’s genetic makeup were likely to commit violence “was clearly distinct from any suggestion that
Petitioner was more likely than not to be violent in the
future.” App. 90a. 6 But “more likely than not” was not
the standard that the jury was asked to apply to the
future dangerousness element; rather, they were
asked to decide whether there was “more than a ‘possibility’” that petitioner might be violent in the future.
ROA.7551-7552; see also ROA.7575; see p. 19, supra.
And Dr. Bernet’s evidence was more than sufficient to
support answering “yes” to that question. After all,
presented with evidence that 32% of people like petitioner were incurably predisposed to commit violent
acts, and the fact that petitioner had already been
proven to be within the 32%, any reasonable jury
would conclude that there was more than a possibility
that petitioner would be violent in the future. That is
precisely why the prosecution emphasized to the jury
that the defense had “conceded” future dangerousness.
See p. 19, supra.
The district court also asserted that the state court had found
as a fact that counsel did not concede future dangerousness. App.
90a. The state court made no such finding. ROA.17791-17798.
6
29
Because the district court, and by extension the
Fifth Circuit, failed to recognize the violence-genetics
evidence as the concession that it was, the courts failed
to analyze the reasonableness of counsel’s concession
under Nixon’s framework. Nixon held that counsel’s
concession was reasonable only because it did not undermine the reliability of the adversarial process as to
guilt and it reasonably could be thought to have benefits at the sentencing phase. 543 U.S. at 190-192. But
the courts below did not even consider the violence-genetics evidence’s devastating impact on the adversarial process at sentencing, not to mention its lack of any
countervailing benefits to petitioner. The evidence relieved the prosecution of its burden of establishing the
critical prerequisite to death. It undermined the mitigating evidence by leading Dr. Bernet to opine that petitioner had not suffered serious mistreatment. It
made the jury far more likely to find that future dangerousness outweighed mitigation, because the upshot
of that testimony was that petitioner was incurably violent for reasons that did not make him sympathetic
or deserving of mercy. ROA.13082-13083. And it
risked inviting the jury to sentence petitioner to death
based on nothing more than his genetic makeup.
Reasonable jurists therefore could at least debate
whether counsel’s concession was unreasonable under
the principles established in Nixon, Strickland, and
Buck. The Fifth Circuit’s contrary conclusion squarely
conflicts with those decisions. The court could not
properly conclude that reasonable jurists would not debate the district court’s rejection of petitioner’s claim
when neither court actually considered how this
Court’s relevant precedents should apply. This Court
should correct that error. And because section “2253
does not limit the scope of [this Court’s] consideration
30
of the underlying merits,” Buck, 580 U.S. at 118, this
Court should review the merits of petitioner’s ineffective-assistance claim.
II.
The Question Presented Is Critically Important.
This Court’s review is acutely needed. The question
presented implicates a serious issue about trial counsel’s obligations in capital cases, and the resolution of
that question is of the utmost significance.
1. This Court has regularly granted certiorari to address whether, and if so under what circumstances,
the Sixth Amendment permits defense counsel in a
capital case to make certain concessions at trial in an
effort to avoid the death penalty. In McCoy v. Louisiana, 584 U.S. 414 (2018), for example, this Court
granted certiorari to address “whether it is unconstitutional to allow defense counsel to concede guilt over
the defendant’s intransigent and unambiguous objection” when “counsel’s experienced-based view is that
confessing guilt offers the defendant the best chance to
avoid the death penalty.” Id. at 417, 420. In Buck, this
Court granted certiorari to address the constitutionality of Buck’s counsel calling an expert to testify that
Buck was statistically more likely to act violently in
the future. See 580 U.S. at 104. And in Nixon, this
Court granted certiorari “to resolve an important question of constitutional law, i.e., whether counsel’s failure to obtain the defendant’s express consent to a
strategy of conceding guilt in a capital trial automatically renders counsel’s performance deficient.” 543
U.S. at 186.
31
The question presented here is of a piece with the
issues decided in McCoy, Buck, and Nixon. This case
likewise presents an important question about
whether and when trial counsel may concede critical
issues consistent with the Sixth Amendment—here,
whether and when counsel may present evidence establishing his own client’s future dangerousness at the
sentencing phase of a capital trial. Indeed, defense
counsel’s conduct here was more egregious than in
cases like McCoy, where this Court acknowledged that
“[c]ounsel may reasonably assess a concession of guilt
as best suited to avoiding the death penalty.” 584 U.S.
at 422; see Nixon, 543 U.S. at 190-191 (“Although such
a concession in a run-of-the-mine trial might present a
closer question, the gravity of the potential sentence in
a capital trial and the proceeding’s two-phase structure vitally affect counsel’s strategic calculus.”). This
Court has not yet had occasion to consider a concession
of aggravating elements at the sentencing phase—but
under any fair reading of Nixon, Strickland, and Buck,
such concessions should be considered reasonable only
if they offer commensurate strategic benefits as to
other parts of the sentencing proceeding.
2. The question presented also has immense implications for the operation of a capital trial. Attorneys
in capital cases routinely face a variant of the dilemma
here—i.e., may they, consistent with constitutional obligations, make certain concessions at trial that they
deem to be in furtherance of the ultimate goal of avoiding the death penalty. And that dilemma presents
weighty issues that strike at the heart of the Sixth
Amendment’s demands. Only this Court can definitively resolve those issues. For that reason, providing
a clear answer to the question presented would provide
much needed guidance to prosecutors, defense counsel,
32
and more generally facilitate the fair and efficient
functioning of the justice system.
3. Finally, the question presented is of overriding
importance to petitioner. His trial counsel were permitted to present testimony that established one of the
prerequisites to a death sentence—future dangerousness—and substantially undermined the defense’s
presentation on the other prerequisite—mitigation.
And as this Court has recognized, “[w]hen a defendant’s own lawyer puts in the offending evidence, it is
in the nature of an admission against interest, more
likely to be taken at face value” by the jury. Buck, 580
U.S. at 122. But the Fifth Circuit refused to enforce
this Court’s Sixth Amendment precedents, and instead
rubberstamped petitioner’s counsel’s deficient performance. As a result, petitioner faces the death penalty.
Had the court of appeals properly enforced the Constitution’s guarantees, petitioner would be entitled to a
certificate of appealability at minimum, and in all likelihood, ultimately to a new sentencing hearing.
CONCLUSION
For the foregoing reasons, the petition for a writ of
certiorari should be granted.
Respectfully submitted,
ELIZABETH M. WRIGHT
COOLEY LLP
500 Boylston St.
Boston, MA 02116
(617) 937-2300
MATTHEW L. KUTCHER
COOLEY LLP
110 N. Wacker Dr.
Chicago, IL 60606
GINGER D. ANDERS
Counsel of Record
XIAONAN APRIL HU
KYLE A. SCHNEIDER
MUNGER, TOLLES & OLSON LLP
601 Massachusetts Ave. NW
Suite 500E
Washington, DC 20001
(202) 220-1100
ginger.anders@mto.com
33
(312) 881-6500
DREW WEGNER
COHEN DOWD QUIGLEY P.C.
2425 East Camelback Road
Phoenix, AZ 85016
(602) 252-8400
December 17, 2025
WILLIAM S. HARRIS
THE LAW OFFICE OF WILLIAM S.
HARRIS
604 E. 4th St., Suite 101
Fort Worth, TX 76102
(817) 718-7060
APPENDICES
i
APPENDICES
APPENDIX A: Opinion of the United States
Court of Appeals for the Fifth Circuit
(July 22, 2025)........................................................... 1a
APPENDIX B: Memorandum Opinion & Order
of the United States District Court for the
Northern District of Texas, Fort Worth Division
(November 2, 2023) ................................................. 13a
APPENDIX C: Memorandum Opinion & Order
of the United States District Court for the
Northern District of Texas, Fort Worth Division
(January 5, 2024) .................................................... 83a
APPENDIX D: Order of the United States
Court of Appeals for the Fifth Circuit Denying
Petition for Rehearing En Banc
(August 19, 2025) .................................................. 100a
1a
APPENDIX A
No. 24-70002
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
AMOS WELLS,
Petitioner-Appellant,
v.
ERIC GUERRERO, Director, Texas Department of
Criminal Justice, Correctional Institutions Division,
Respondent-Appellee.
[Filed] July 22, 2025
Appeal from the United States District Court for the
Northern District of Texas
USDC No. 4:21-CV-1384
Before Stewart, Graves, and Oldham, Circuit Judges.
PER CURIAM: 1
A Texas jury convicted Amos Wells of multiple
murders and sentenced him to death. After exhausting his appeals and postconviction remedies in state
court, Wells sought postconviction relief in federal
court. The district court denied it. Now Wells asks us
for a certificate of appealability (“COA”). Because his
claims are not debatable amongst jurists of reason,
we deny his application.
I
On July 1, 2013, Amos Wells became angry with
his pregnant girlfriend, Chanice Reed, for refusing to
This opinion is not designated for publication. See 5th Cir. R.
47.5
1
2a
answer his phone calls. He drove to her home with a
gun in his truck. When he arrived, he took Chanice
outside and the two argued. Wells shot Chanice four
times and killed her; Wells shot Chanice’s mother
twice and killed her; and Wells shot Chanice’s tenyear- old brother, Eddie, four times and killed him.
Wells also killed Chanice’s unborn baby. 2 Wells v.
State, 611 S.W.3d 396, 403 (Tex. Crim. App. 2020).
The shooting stopped when Wells’ gun jammed. Wells
got into his truck, drove around town, and then went
to the police station and confessed.
A jury convicted Wells of capital murder and sentenced him to death. The penalty phase required the
jury to find “a probability that the Defendant would
commit criminal acts of violence that would constitute a continuing threat to society,” and that there
were no “sufficient mitigating circumstance or circumstances to warrant” a life sentence without parole
instead of the death penalty. The jury made those
requisite findings and Wells received a death sentence. He brought a direct appeal to the Texas Court
of Criminal Appeals, raising thirteen points of error.
Id. at 402. The CCA found no error and affirmed the
conviction and sentence.
Wells sought post-conviction habeas relief in state
court and appealed its denial to the Texas Court of
Criminal Appeals and Supreme Court of the United
States. See Ex parte Wells, No. WR-86, 184-01, 2021
WL 5917724 (Tex. Crim. App. Dec. 15, 2021), cert.
denied sub nom., Wells v. Texas, 142 S.Ct. 2722
(2022). He then brought a federal habeas petition in
the Northern District of Texas, raising nine claims.
The district court found all meritless and denied the
Postmortem DNA testing confirmed that Wells was, in fact,
the child’s father. Id.
2
3a
petition along with Wells’s accompanying motions to
stay state proceedings and for a COA. Wells v. Lumpkin, No. 4:21-CV-01384-O, 2023 WL 7224191 (N.D.
Tex. Nov. 2, 2023). Wells filed a motion under Rule
59(e) to alter or amend the judgment, which the district court also denied. Wells timely appealed.
II
Wells requests a certificate of appealability on four
of his claims. See 28 U.S.C. § 2253(c)(3) (limiting the
availability of a COA to a “specific issue or issues”).
We “may issue” a COA “only if the applicant has
made a substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2). That standard requires a petitioner to “demonstrat[e] that jurists of
reason could disagree with the district court’s resolution of his constitutional claims.” Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003). If the district
court’s ruling rested on procedural grounds, the prisoner must show both that the procedural ruling is
debatable and that it is debatable whether he stated
a valid claim. Slack v. McDaniel, 529 U.S. 473, 484
(2000).
“The COA inquiry . . . is not coextensive with a
merits analysis. At the COA stage, the only question
is whether the applicant has shown that ‘jurists of
reason could disagree with the district court’s resolution of his constitutional claims or that jurists could
conclude the issues presented are adequate to deserve encouragement to proceed further.’” Buck v.
Davis, 580 U.S. 100, 115 (2017) (quoting Miller-El,
537 U.S. at 327). Thus, at this preliminary COA
stage, we do not consider the merits of Wells’ claims—
only whether he has shown that the district court’s
resolution of them is debatable amongst jurists of
reason. See id.
4a
None of Wells’ claims meets the COA standard. We
first (A) hold that jurists of reason would not debate
whether Wells’ trial counsel rendered ineffective assistance by (1) presenting expert testimony about his
possible genetic predisposition to violence and (2) failing to strike a particular juror who allegedly believed
that the death penalty should be mandatory for those
guilty of murder. We then (B) explain that jurists of
reason would not debate whether the trial court violated the Eighth Amendment by excluding certain potentially mitigating video evidence. Finally, we (C)
hold that jurists of reason would not debate whether
Wells’ appellate counsel rendered ineffective assistance by failing to argue that Eighth Amendment issue on appeal.
A
Ineffective assistance of counsel (“IAC”) claims are
governed by the standard set forth by the Supreme
Court in Strickland v. Washington, 466
U.S. 668 (1984). “First, the defendant must show
that counsel’s performance was deficient,” which “requires showing that counsel made errors so serious
that counsel was not functioning as the ‘counsel’
guaranteed” by the Sixth Amendment. Id. at 687. The
defendant must also show prejudice, which “requires
showing that counsel’s errors were so serious as to
deprive the defendant of a fair trial.” Id.
Where a defendant’s IAC claim is adjudicated under § 2254(d)(1), “[t]he pivotal question is whether
the state court’s application of the Strickland standard was unreasonable.” Harrington v. Richter, 562
U.S. 86, 101 (2011). So the state court’s determination “must be granted a deference and latitude that
are not in operation when the case involves review
under the Strickland standard itself.” Id., see also
5a
Burt v. Titlow, 571 U.S. 12, 15 (2013) (describing this
review as “doubly deferential”). So, in addition to respecting the state court’s decision, we afford a “strong
presumption of reasonableness” to Wells’ counsel.
Dunn v. Reeves, 594 U.S. 731, 739 (2021) (per curiam)
(quotation omitted); Titlow, 571 U.S. at 15. Even
where “counsel’s conduct was far from exemplary,”
relief is warranted only where “every fairminded jurist would agree that every reasonable lawyer would
have made a different decision.” Dunn, 594 U.S. at
739–40 (emphasis in original) (cleaned up).
And under Buck, we do not ask if the district court
correctly applied these legal rules. We ask only
whether the district court’s resolution of the claim is
debatable amongst jurists of reason. See Buck, 580
U.S. at 115.
1
Wells first contends trial counsel rendered IAC by
presenting expert testimony that he was genetically
predisposed to violence at the penalty phase. The defense’s theory went as follows: Mutations in the Monoamine Oxidase A (“MAOA”) gene can affect the
brain’s metabolism of serotonin. When combined with
childhood abuse, low-activity MAOA mutations increase the likelihood of future violent behavior and
difficulty controlling anger. Wells’ team of experts determined that he had the low-activity MAOA mutation and a “semi traumatic environment in formative
years,” contributing to “a greater likelihood that
[Wells] could have explosive and violent outbursts in
his lifetime.”
Wells now objects to this strategy on two grounds:
First, he argues it conceded a necessary element to
the prosecution. See ROA.5861 (requiring jury to find
a “probability” that Wells “would commit future acts
6a
of violence” at penalty phase). Second, he contends
that it permitted the jury to convict him based on an
“immutable genetic trait.” see Buck, 580 U.S. at 123
(“Dispensing punishment on the basis of an immutable characteristic flatly contravenes th[e] guiding
principle” that “[o]ur law punishes people for what
they do, not who they are.”). The CCA rejected this
claim on the merits. And the district court held the
claim “border[s] on frivolous.” Wells, 2023 WL
7224191, at *10.
Jurists of reason would not debate the district
court’s resolution of this claim. The record shows that
the state habeas court acknowledged the “wide range
of reasonable professional assistance” and the “heavy
measure of deference” due to strategies developed for
trial. It accordingly declined to evaluate counsel’s
performance using the “twenty-twenty vision of hindsight.” And it acknowledged the danger of using evidence like this, which is often “a double-edged sword
that jurors could consider either as sufficiently mitigating evidence or as powerful evidence of future
dangerousness.”
Wells’ counsel acknowledged all along that this evidence could support a positive finding on the issue of
future violence. See ROA.15978 (memorandum of trial counsel submitted in 2016) (acknowledging this evidence “could potentially help the State’s efforts” to
show a probability of future violence). Counsel nonetheless believed it “could be a sufficiently mitigating
fact” because Wells chose neither his genetics nor his
childhood experiences, diminishing his perceived culpability. So counsel concluded it might “ultimately
help [Wells’] chances of not receiving the death penalty.” Additionally, Wells’ genetic expert testified that
the increased probability of violence “doesn’t mean
it’s likely to happen; it means he’s more likely than
7a
an average person.” His counsel argued that the genetic testimony “gives you cause to pause” and asked
whether Wells should receive the death penalty
“when we know there are [three] things he couldn’t
control . . . genes, his brain, and his environment.”
Whether to present such evidence lies within the
heartland of “strategic decisions” that appellate
courts cannot second-guess unless the defendant rebuts their “strong presumption of reasonableness.”
Dunn, 594 U.S. at 739 (quotation omitted). That is
precisely why the federal district court rejected Wells’
claim. See Wells, 2023 WL 7224191, at *11 (describing this theory as “nothing more than mere post-hoc
disagreement with trial counsel’s strategy”). And we
do not think the district court’s treatment of this
claim is debatable among jurists of reason.
2
Wells further argues his trial counsel rendered
IAC by failing to strike a juror based on his comments about the death penalty during voir dire.
Strickland also governs challenges to counsel’s failure
to strike or challenge prospective jurors for cause.
Harper v. Lumpkin, 64 F.4th 684, 692 (5th Cir. 2023);
see also id. at 693 (holding that no “clearly established federal law . . . would allow reasonable jurists
to debate th[e] conclusion” that counsel was not ineffective when it failed to challenge jurors who “expressed the opinion that they could answer the special issues in such a way that either life or death
would result based on the evidence and the law”).
In a voir dire questionnaire, one prospective juror
indicated he believed the death penalty should apply
to those found guilty of murder. During his voir dire
examination, however, the juror accepted that Texas
law requires aggravating factors in addition to a mere
8a
finding of guilt to impose a death sentence. He also
pledged that he would not always find a defendant
dangerous in the future and would answer the special
issues based on the evidence adduced at trial. At the
end of examinations from both the prosecution and
the defense, the juror affirmed he “might give [Wells]
a death sentence and [he] might not.”
We have held that failure to strike a juror is constitutionally permissible when he pledges during voir
dire to follow the law. Harper, 64 F.4th at 693. Moreover, trial counsel may make reasonable strategic decisions in striking or not striking prospective jurors.
Cf. Morgan v. Illinois, 504 U.S. 719, 729 (1992) (“The
Constitution, after all, does not dictate a catechism
for voir dire . . .”).
The CCA rejected this claim on the merits. And the
district court held “[t]his claim fails to satisfy either
prong of Strickland under de novo review and does
not warrant federal habeas relief.” Wells, 2023 WL
7224191, at *21.
Jurists of reason would not debate the district
court’s decision. Trial counsel explained that he was
concerned about peremptorily striking the juror because he was a minority, fearing that it would undermine his Batson challenge. Trial counsel was also
concerned that using one of his peremptory strikes
could result in a “much worse” juror getting seated.
The district court therefore held there were no
grounds for a for-cause strike, and that Wells suffered no prejudice in any event. Jurists of reason
would not debate that decision.
B
Wells also alleges the trial court violated his
Eighth Amendment right to present mitigating evidence by excluding certain video evidence— specifi-
9a
cally, video evidence of Wells’ purported remorsefulness in the police interrogation room. “[T]he Eighth
Amendment requires that the jury be able to consider
and give effect to a capital defendant’s mitigating evidence.” Tennard v. Dretke, 542 U.S. 274, 285 (2004)
(quotation omitted). The decision to exclude such evidence “is quintessentially a trial error subject to
harmless error review.” Rhoades v. Davis, 914 F.3d
357, 368 (5th Cir. 2019).
Wells’ counsel sought to introduce the recording
during the penalty phase to show Wells “was acting
strange” or “under some distorted emotional sense.”
ROA.13495–96. The video lasts about eight hours and
depicts his initial, hourlong interview, six hours of
Wells’ detention, and his second, hourlong interview.
Wells, 611 S.W.3d at 407. During the downtime between the interviews, Wells exhibited some strange
behavior and made repeated comments like “This is
too weird” and “This is a dream.” Id. Wells contends
this evidence tended to show his remorse, and such
remorsefulness could constitute mitigating evidence
at sentencing.
The CCA held this claim was procedurally defaulted because Wells never tried to introduce the evidence to show remorse and because some of the evidence did not satisfy the State’s hearsay rules. And in
any event, the CCA held the claim was meritless because any error was harmless beyond a reasonable
doubt. On federal review, the district court held that
the CCA’s ruling constituted an adequate and independent state ground that barred federal relief.
Wells, 2023 WL 7224191, at *8. To secure a COA,
Wells must show both that the district court’s procedural ruling is debatable and that the underlying
constitutional claim is debatable. Slack, 529 U.S. at
484.
10a
Neither ground is debatable. As to the district
court’s procedural ruling, the record shows that Wells
failed to make the specific evidentiary proffer required by Texas law. Golliday v. State, 560 S.W.3d
664, 669–70 (Tex. Crim. App. 2018); Tex. R. Evid.
103(a)(2); Tex. R. App. P. 33.1(a)(1)(A). Nor would jurists of reason debate the district court’s application
of Texas’s evidentiary rules.
In any event, Wells has failed to show that the underlying merits are debatable. That is because jurists
of reason would conclude that, at best, the excluded
evidence was cumulative. The jury saw several pieces
of evidence that showed the same alleged remorse: a
video of Wells taken immediately after the offense
and before the excluded video began, officer’s testimony about his “trance-like demeanor,” testimony
about a phone call Wells made “immediately after the
shootings,” and evidence about his suicidal and distraught state. That is a considerable amount of material showing Wells’ mental state after the murders.
Cf. Wong v. Belmontes, 558 U.S. 15, 23 (2009) (“Additional evidence on these points would have offered an
insignificant benefit, if any at all.”).
Additionally, trial counsel presented a host of other mitigating evidence attempting to demonstrate the
same attributes Wells contends the video would
show. That included testimony from family members,
doctors and mental health professionals, people from
his childhood, and Wells himself. Wells has shown no
reason to think that “the evidence in favor of mitigation and the evidence against mitigation [was] so delicately balanced that the excluded . . . video would
have been enough to tip the scales.” Wells, 611
S.W.3d at 418.
In short, Wells cannot show that the district
court’s procedural ruling was debatably wrong. Nor
11a
can he show that the merits underlying his Eighth
Amendment claim are debatable.
C
Finally, Wells contends that his appellate counsel
rendered IAC on state direct review by failing to object to the trial court’s exclusion of three “jailhouse
media interviews” from the day after the murders.
These videos showed Wells “cr[ying], express[ing] his
desire to die, and apologiz[ing].” Appellate counsel
initially challenged only the exclusion of the interrogation room video, not the next day’s news clips.
This claim is subject to the Strickland standard, as
clarified in Smith v. Robbins, 528 U.S. 259 (2000).
Appellate counsel provides IAC where he acts “objectively unreasonabl[y],” id. at 285, in “fail[ing] to discover nonfrivolous issues and [filing] a merits brief
raising them.” Id. The defendant must also show
prejudice. Id. at 286. Generally, to succeed on this
kind of claim, defendants must instead show that
omitted issues “are clearly stronger than those presented.” Id. at 288 (quotation omitted). That requirement respects counsel’s strategic discretion:
“[A]ppellate counsel who files a merits brief need not
(and should not) raise every nonfrivolous claim, but
rather may select from among them in order to maximize the likelihood of success on appeal.” Id.
The CCA rejected this claim on the merits. It concluded that any error was harmless because the jury
considered “better, more compelling evidence” of
Wells’ mental condition shortly after the murders.
And the district court held Wells’ ineffectiveassistance-of-appellate-counsel “claims fail to satisfy
the prejudice prong of Strickland and thereby fail to
warrant federal habeas relief.” Wells, 2023 WL
7224191, at *24.
12a
Jurists of reason would not debate the district
court’s resolution of this claim. During state habeas
proceedings, appellate counsel submitted an affidavit
stating that he raised “all of the points of error in the
appeal that [he] determined to have merit.” He appealed exclusion of the interrogation video over the
others because he “thought [it] had the best chance”
of aiding reversal. For good reason: The jailhouse
media interview videos contained highly negative
commentary about Wells from reporters, the victims’
family members, and a neighbor. We therefore do not
think jurists of reason would debate the district
court’s rejection of this claim.
* * *
Wells has not “made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). Accordingly, his motion for a COA is DENIED.
13a
APPENDIX B
No. 4:21-CV-01384-O
(Capital Case)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
AMOS J. WELLS III,
Petitioner,
v.
BOBBY LUMPKIN, Director, Texas Department of
Criminal Justice, Correctional Institutions Division,
Respondent.
[FILED November 2, 2023]
MEMORANDUM OPINION & ORDER
Before the Court are Petitioner Amos J. Wells III’s
Amended Petition for Writ of Habeas Corpus (ECF
No. 58), filed March 20, 2023; Petitioner Amos J.
Wells III’s Motion to Stay Proceedings (ECF No. 60),
filed March 20, 2023; Respondent Bobby Lumpkin’s
Answer to the Amended Petition for Writ of Habeas
Corpus (ECF No. 69), filed July 19, 2023; Respondent
Bobby Lumpkin’s Opposition to the Motion to Stay
Proceedings (ECF No. 70), filed July 19, 2023; Petitioner Amos J. Wells III’s Reply in Support of the
Amended Petition for Writ of Habeas Corpus (ECF
Nos. 80, 81), filed September 18, 2023; and Petitioner
Amos J. Wells III’s Reply in Support of the Motion to
Stay Proceedings (ECF No. 79), filed September 18,
2023.
For the reasons set forth herein, the Court DENIES the Amended Petition for Writ of Habeas Corpus, the Motion to Stay Proceedings, and the Certifi-
14a
cate of Appealability.
I.
BACKGROUND
A. CAPITAL MURDER OFFENSE 1
On July 1, 2013, Petitioner became infuriated at
Chanice Reed, his eight-month-pregnant girlfriend,
for not answering his calls. So, Petitioner drove to
Chanice’s Fort Worth home where she resided with
her grandmother, mother, and two younger brothers.
When Petitioner arrived at the Reed household,
Chanice was home with Annette Reed, her mother,
and E.M., her ten-year- old little brother. K.S.,
Chanice’s seventeen-year-old brother, was not at
home at the time. However, while on the phone with
his mother to seek her permission to go swimming,
K.S. overheard Chanice and Petitioner verbally quarreling. Specifically, K.S. overheard Chanice utter:
“Stop, Amos, you’re scaring me.” K.S. was also able to
hear Annette raising her voice at Petitioner before
hanging up on the mother-and-son phone call.
Not long afterward, Annette placed a phone call
asking Joylene Parsons, her aunt, to come over to the
Reed home. According to Parsons, Annette sounded
extraordinarily troubled. Parsons also described
overhearing a man unleashing a “bone-chilling
scream” at the top of his lungs in the background of
the call. After hearing Annette say, “You not going in
there,” Parsons asked who else was at the Reed
home. Annette replied with “Chanice’s boyfriend.”
Parsons understood that Annette was referring to Petitioner. Annette subsequently stated that “[Chanice]
Unless noted otherwise, this section is a summary of the undisputed facts expounded upon in detail in the Texas Court of Criminal Appeals’ opinion affirming Petitioner Amos J. Wells III’s
conviction and sentence on direct appeal. See Wells v. State, 611
S.W.3d 396 (Tex. Crim. App. 2020).
1
15a
got to be the stupidest bitch to open the door to let
that fool in,” and to “Come on, come on.” Parsons immediately called nearby family members and 9-1-1
for help. While the 9-1-1 operator was in the middle
of asking questions, Annette reported “He’s going to
his truck,” before her line on the call suddenly went
dead.
A bystander was working on a driveway down the
street from the Reed household. He heard the commotion and watched as a man and a woman argued
loudly in the Reed’s front yard. The bystander testified that the argument began to escalate in intensity.
He saw the man retrieve a handgun from a Chevrolet
Tahoe parked in front of the Reed home, return back
to the front yard, and proceed to aim and fire the
handgun directly at the woman multiple times from
point-blank range as she cried out in desperation:
“No, no, no.” According to the bystander, another
woman approached, urgently attempting to deflect or
disarm the man of his handgun. Without hesitation,
the man proceeded to aim and fire the handgun directly at the second woman multiple times from
point-blank range as well. Hearing the blaze of yet
even more gunshots, the bystander remained hidden
by his house until the perpetrator drove off in the
Tahoe. He subsequently went into the Reed home and
observed a woman, later identified as Chanice, lying
outside the front door with her eyes open. Chanice
was profusely bleeding and completely unresponsive.
1. The Murders
First responders arrived within minutes of the first
9-1-1 report of the shootings. They discovered that
Chanice with four gunshots to her pregnant body.
One round pierced her skull right in between her eyes
and cut its way through the right side of her brain. A
second round punctured her lower chest. A third
16a
round burst into Chanice’s pregnancy-stretched left
abdomen, inflicting irreversible damage by tearing
through her lungs, stomach, aorta, and thoracic
spine. The fourth round penetrated Chanice’s back
through her left side, ripping open a superficial gunshot wound. First responders at the scene, including
emergency paramedics, were unable to save or revive
Chanice’s life. Chanice’s unborn baby was also unable
to be saved and perished along with his mother. Postmortem testing revealed that Petitioner was the biological father of the slain child.
Chanice’s mother Annette suffered two fatal gunshots to her head. One large-caliber bullet drilled
right into her mid-forehead, severing her anterior
cerebral artery supplying blood to the brain and
eventually depositing at the base of her ruptured
brain. The second bullet scalped Annette from above
her right ear, shredding more of her brain and crumbling down her left eye socket and eyeball with it.
Early responders to the scene found Annette still
alive as she was on the ground and helplessly shrieking. Chanice’s mother would suffer the same fate as
Chanice shortly thereafter at the hospital.
Chanice’s little brother E.M. suffered four gunshot
wounds to his ten-year-old body. The child’s slain
body had been found in a hallway inside of the actual
residence. One shot blistered through his right ear,
rattled down his neck on the right side, lacerated his
left subclavian vein and lung, and then ejected out
through his back. A second shot was lodged into the
front of his chest, puncturing the lower pericardial
sac of E.M.’s heart and slashing through his diaphragm, liver, and interior vena cava carrying blood
to his heart, cutting further through his lung and rib
thereafter, and finally bursting back out of the juvenile’s body through his back. A third shot again per-
17a
forated the front of his chest—this time blazing
through E.M.’s stomach, colon, mesentery, and left
iliopsoas muscle before erupting back out from the
child’s back. The fourth gunshot scorched through
E.M.’s left forearm from back to front.
2. The Investigation and Arrest
All the cartridge casings recovered at the scene
were of the same .9-millimeter caliber and brand. It
was later confirmed that they had all been fired from
the same weapon. Based on statements from witnesses and family members collected at the scene of this
killing spree, law enforcement focused their investigation on Petitioner as the main suspect. In the
meantime, Petitioner called Valricia Brooks, a former
girlfriend who shared a daughter with Petitioner, and
told her what transpired. He confessed to her that he
had shot and killed Chanice, Annette, and E.M. and
that he was considering fleeing. Petitioner’s brother,
Amron Wells, eventually joined the call with Petitioner and Brooks. Petitioner also informed his
brother of the killings. Petitioner indicated his intent
to drive off somewhere to commit suicide and asked
Amron to care for his daughter for him. Brooks arranged a phone call between Petitioner and his
daughter and subsequently advised Petitioner to turn
himself in to the authorities.
Later that evening, Petitioner walked into the Forest Hills Police Department lobby and, in a rambling
and incoherent manner, blurted, “Put me in jail; kill
me.” Sergeant Christopher Hebert noted that Petitioner was a “sweaty, big guy, muscular, [and] had a
dazed kind of spacey look on him.” Sergeant Hebert
handcuffed Petitioner as a safety precaution. He further described Petitioner’s demeanor as being “like a
calm storm . . . calm demeanor but aggressive,” and
“look[ing] like he could [] explode any second.” Fort
18a
Worth officers then transported Petitioner to a Fort
Worth police station, where Detectives Matthew Barron and Tim O’Brien attempted to interview Petitioner that night. Without reading Miranda warnings,
Detective Barron began by asking Petitioner routine
intake questions, i.e., name, date of birth, and address. Petitioner voluntarily answered these questions. Detective Barron followed up by inquiring:
what Petitioner had done that day; why Petitioner
showed up at the Forest Hills police station; whether
Petitioner had been on the street where the Reed
family resided; and what had happened on the street
where the Reed family resided. Petitioner denied being present on that street that day. When Detective
Barron asked Petitioner to tell him what had happened on that street, Petitioner repeatedly answered,
“You tell me what happened.”
Having not acquired useful information after forty
or so minutes of questioning and an eight-minute
break, the detectives ceased their interview of Petitioner and shifted gears toward interviewing others
who were asked to give statements at the station.
Slightly past midnight, Detective Barron made a determination that the authorities had probable cause
to arrest Petitioner and search Petitioner’s residence.
Detective Barron obtained and executed a search
warrant at Petitioner’s residence during the early
morning hours of July 2, 2013. The search turned up
a undegraded empty cardboard .9 millimeter ammunition box; an opened .9 millimeter ammunition box
containing 38/50 unspent cartridges matching the
casings found at the crime scene; a gun magazine
loaded with thirteen .9 millimeter rounds; an otherwise empty plastic handgun case that contained a
single unspent .9 millimeter round; and a home security system control box containing time-stamped vid-
19a
eos, which depicted Petitioner backing out of the
driveway alone in his Tahoe shortly before the offense
on July 1, and Petitioner’s brother pulling into the
driveway alone in the Tahoe later that same night.
Upon completion of the search, Detective Barron
obtained an arrest warrant later that morning and
returned to Petitioner’s interview room to inform him
that he was being charged with capital murder. Detective Barron proceeded to issue the standard Miranda warnings to which Petitioner waived his rights
in response. Detective Barron re-interviewed Petitioner, which consummated in Petitioner breaking
down crying and confessing in detail to the murders
of Chanice, Annette, and E.M. on July 1, 2013.
3. The Indictment
On September 16, 2013, a Tarrant County grand
jury indicted Petitioner on three counts of capital
murder, to wit: intentionally and knowingly shooting
Chanice and her mother Annette during the course of
the same criminal episode; intentionally and knowingly shooting Chanice and her brother E.M. during
the same criminal episode; and intentionally and
knowingly shooting E.M. and his mother Annette
during the same criminal episode. 2 Petitioner’s original indictment included a deadly weapon allegation.
On March 6, 2015, Petitioner was re-indicted on a
single count of capital murder, to wit, intentionally
and knowingly shooting Chanice and her mother Annette during the same criminal episode, with a second
paragraph containing a deadly weapon allegation. 3
2
ECF No. 73-5, 37-38.
3
ECF No. 73-5, 18-19.
20a
B. CAPITAL MURDER PROCEEDINGS
Petitioner’s capital murder trial commenced on October 31, 2016. In addition to the evidence summarized above, the prosecution presented testimony
from the medical examiners who conducted the autopsies on Petitioner’s three victims. Petitioner did
not testify at the guilt- innocence phase of trial and
advised his trial counsel on the record that he did not
wish them to call any other witnesses or offer any evidence. 4 On November 3, 2016, at the conclusion of
the evidence on guilt-innocence, the jury found Petitioner guilty beyond a reasonable doubt of capital
murder as charged in the indictment 5. See TEX. PENAL CODE § 19.03(a)(7)(A).
The punishment phase of Petitioner’s trial commenced on November 4, 2016. The prosecution presented testimony and other evidence showing that:
(1) on multiple occasions Petitioner assaulted a prior
romantic partner, Valricia Brooks, who was also the
mother of his child; (2) on multiple occasions prior to
the date of the fatal shootings, Petitioner behaved violently toward Chanice Reed; and (3) while awaiting
trial for capital murder, Petitioner assaulted another
inmate at the Tarrant County Jail.
Trial counsel for Petitioner presented extensive
testimony from Petitioner’s parents, family, and mental health experts showing that: (1) Petitioner endured a violent, unstable, emotionally abusive family
life during his upbringing; (2) Petitioner was diagnosed with Attention Deficit Hyperactivity Disorder
(“ADHD”) as a child, for which he was prescribed
medication; (3) Petitioner’s mother suffered from per4
ECF No. 74-33; 36 R.R. 12-18
5
ECF Nos. 73-5, 74-36; 1 C.R.T. 713; 33 R.R. 58-61.
21a
sonality disorders that left her incapable of distinguishing right from wrong; and (4) Petitioner’s biological father displayed a lack of personal and financial
responsibility. The defense also presented extensive
expert testimony showing that Petitioner was genetically predisposed to violence. Petitioner’s trial counsel contended that this made Petitioner less morally
culpable for his own acts of violence.
Finally, Petitioner himself took the stand during
the punishment phase of trial and testified that: (1)
he had participated in counseling sessions to address
his violent acts toward Brooks and Reed; (2) he had
no recollection of shooting any of his victims; (3) he
had a long history of difficulty controlling his emotions, particularly when angry; and (4) he was sincerely remorseful for his offenses.
On November 18, 2016, the jury returned its punishment phase verdict and found: (1) beyond a reasonable doubt that there was a probability Petitioner
would commit criminal acts of violence constituting a
continuing threat to society; and (2) there were insufficient mitigating circumstances warranting the imposition of a sentence of life imprisonment without
the possibility of parole. 6 The trial court entered
judgment and imposed a sentence of death. 7 See TEX.
PENAL CODE §§ 19.03(a)(7), 19.02(b)(1).
C. DIRECT APPEAL
Petitioner directly appealed his conviction and sentence. Attorney John Stickels filed the Appellant’s
Brief for Petitioner on May 13, 2018. In it, appellate
counsel argued thirteen points of error challenging
6
ECF Nos. 73-6, 267; 2 C.R.T. 756; 45 R.R. 50-195.
7
ECF No. 73-6; 2 C.R.T. 763-65, 777-90.
22a
the decisions rendered by the state trial court. 8 The
Texas Court of Criminal Appeals unanimously affirmed the judgment of the state trial court convicting
Petitioner of capital murder and sentencing Petitioner to capital punishment. Wells, 611 S.W.3d at 430. 9
D. STATE HABEAS CORPUS PROCEEDINGS
On April 18, 2019, Petitioner applied for state habeas corpus relief. Attorneys Benjamin Wolff, Ashley
R. Steele, and Michelle Ward, all associated with the
Texas Office of Capital and Forensic Writs, filed Petitioner’s 400-plus page state habeas corpus application
with voluminous exhibits accompanying the same. 10
The application was also accompanied by several
thousand pages of exhibits, including thousands of
pages of sealed medical, mental health, and school
records. 11 Petitioner raised nine claims for habeas
corpus relief in the state post-conviction process.
The state habeas trial court did not hold an evidentiary hearing. Instead, it directed the parties to
file affidavits with proposed findings of fact and conclusions of law. Upon review, the state habeas trial
court adopted with only minor modifications the proposed findings of fact and conclusions of law submitted by the State. 12 In its findings and conclusions, the
court found credible and relied heavily on the affida8
ECF No. 73-2.
9
See also ECF No. 73-32.
10
See ECF Nos. 76-16, 76-10, 76-11, 76-13, 76-12.
11
See ECF Nos. 78-1 to 78-13.
Compare State’s Proposed Findings of Fact and Conclusions of
Law, ECF No. 76-19, 20; 2 S.H.C.R. 409-500, 503-44, with August 10, 2021 Order of State Habeas Court, ECF No. 76-20; 2
S.H.C.R. 656-57.
12
23a
vits furnished by trial counsel for Petitioner, i.e., attorneys Bill Ray and Stephen Gordon. 13 The Texas
Court of Criminal Appeals denied state habeas relief
on the merits, expressly adopting all but one of the
trial court’s factual findings and conclusions of law.
See Ex parte Wells, WR-86,184-01, 2021 WL 5917724
(Tex. Crim. App. Dec. 15, 2021). 14
On May 16, 2022, the Supreme Court of the United
States denied Petitioner’s certiorari petition. Wells v.
Texas, 142 S. Ct. 2722 (2022).
II.
LEGAL STANDARD
“Federal habeas features an intricate procedural
blend of statutory and caselaw authority.” Adekeye v.
Davis, 938 F.3d 678, 682 (5th Cir. 2019). The blend
largely consists of the two core strictures codified under the Antiterrorism and Effective Death Penalty
Act (“AEDPA”). 28 U.S.C. § 2254. First, AEDPA requires a petitioner to “exhaust[] the remedies available in the courts of the State” before seeking federal
habeas relief. § 2254(b)(1)(A). Ordinarily, a petitioner
satisfies this exhaustion requirement by raising his
federal claim before the state courts, per state procedures. See O’Sullivan v. Boerckel, 526 U.S. 838, 848
(1999).
Second, AEDPA requires a petitioner to show that
the state court decision was either: (1) “contrary to, or
involved an unreasonable application of” clearly established federal law; or (2) rested “on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” § 2254(d);
See ECF No. 78-13, 189-207, 327-33; 3 S.H.C.R. 2689-3707
(Affidavit of Attorney Ray); 3 S.H.C.R. 2827-55 (Affidavit of Attorney Gordon).
13
14
See also ECF No. 76-17.
24a
Brown v. Davenport, 596 U.S. 118, 135 (2022).
(1) With respect to applying clearly established
federal law, a state court decision is “contrary to”
clearly established federal law if the state court: (i)
arrives at a conclusion opposite to that reached by the
Supreme Court on a question of law; or (ii) decides a
case differently than the Supreme Court on a set of
materially indistinguishable facts. Brown v. Payton,
544 U.S. 133, 141 (2005). A state court decision “unreasonably applies” clearly established federal law to
the facts of the petitioner’s case if the application (iii)
is objectively unreasonable rather than merely incorrect or erroneous. McDaniel v. Brown, 558 U.S. 120,
132–33 (2010). Legal principles are “clearly established” when Supreme Court precedents, existing at
the time of the state court decision, establish those
principles. Brown, 142 S. Ct. at 1525.
(2) With respect to determining facts from the evidence, a state court finding is presumed reasonable
unless the petitioner demonstrates by clear and convincing evidence that it is erroneous. Miller-El v.
Dretke, 545 U.S. 231, 240 (2005). “[A] state-court factual determination is not unreasonable merely because the federal habeas court would have reached a
different conclusion in the first instance.” Wood v. Allen, 558 U.S. 290, 301 (2010). Nor is a factual determination unreasonable merely because reasonable
minds reviewing the record might disagree about the
factual finding or the implicit credibility determination underlying the factual finding. Id.
In addition to the onerous thresholds erected by
AEDPA, the petitioner must also persuade that the
state court’s error during adjudication of the petitioner’s criminal case was not harmless. Brown, 142 S.
Ct. at 1517. To do so, the petitioner must show that
the error had a “substantial and injurious effect or
25a
influence” on the verdict. Brecht v. Abrahamson, 507
U.S. 619, 622 (1993). If, however, the state court fails
to adjudicate a claim on the merits that the petitioner
presents to this Court, that claim will receive de novo
review. See Porter v. McCollum, 558 U.S. 30, 39
(2009).
Under Teague non-retroactivity, a federal habeas
court is barred from applying a new rule of federal
constitutional criminal procedure retroactively on collateral review. See Caspari v. Bohlen, 510 U.S. 383,
389-390 (1994) (citing Teague v. Lane, 489 U.S. 288
(1989)). A court applies a “new rule” of criminal procedure in a case if “the result was not dictated by
precedent existing at the time the defendant's conviction became final.” Teague, 489 U.S. at 301 (emphasis
in original). This includes a holding that either
“breaks new ground” or “imposes a new obligation on
the States or the Federal Government.” O’Dell v.
Netherland, 521 U.S. 151, 156 (1997) (cleaned up).
Teague precludes a federal habeas court from ruling
in favor of the petitioner’s claim on collateral review
unless a state court hearing the same claim at the
time of the petitioner’s final conviction “would have
felt compelled by existing precedent to conclude that
the rule [the petitioner] seeks was required by the
Constitution.” Saffle v. Parks, 494 U.S. 484, 488
(1990).
A petitioner’s conviction becomes final under
Teague when the availability of direct appeal to the
state courts has been exhausted and either the time
for filing a certiorari petition with the U.S. Supreme
Court has elapsed or the U.S. Supreme Court has issued a final denial of a timely filed certiorari petition.
Caspari, 510 U.S. at 390. Notwithstanding the enactment of AEDPA, federal habeas courts remain
bound to apply Teague in collateral review proceed-
26a
ings. See Horn v. Banks, 536 U.S. 266, 268-72 (2002);
Robertson v. Cockrell, 325 F.3d 243, 255 (5th Cir.
2003).
III.
ANALYSIS
Three matters are ripe for the Court’s review: (A)
the Amended Petition for Writ of Habeas Corpus; (B)
the Motion to Stay Proceedings; and (C) the Certificate of Appealability. The Court proceeds by addressing each in turn.
A. PETITION FOR WRIT OF HABEAS CORPUS
Petitioner raises nine claims in support of his
Amended Petition for a writ of habeas corpus: (1) unconstitutional exclusion of video mitigation evidence
under the Eighth and Fourteenth Amendments; (2)
ineffective assistance of trial counsel in violation of
the Sixth and Fourteenth Amendments for failing to
present a cogent mitigation case and rebut mens rea,
and for seating a partial juror; (3) ineffective assistance of trial counsel and state habeas counsel for
failing to have the full video of an exhibit admitted
into the record; (4) ineffective assistance of appellate
counsel for failing to timely address exclusion of video
evidence; (5) ineffective assistance of trial counsel for
using racially charged remarks; (6) deprivation of due
process of law under the Fourteenth Amendment
from prosecutorial misconduct; (7) deprivation of due
process of law for the presentation of genetic evidence; (8) the unconstitutionality of the state capital
sentencing and post-conviction relief system; and (9)
the unconstitutionally of capital punishment.
Addressing each in turn, the Court DENIES all
nine of Petitioner’s claims as well as all additional
prayers for relief provided in the Amended Petition.
27a
1. Constitutionality of Evidence Exclusion
at Capital Sentencing (Claim One)
Petitioner first claims that the state trial court violated the Eighth and Fourteenth Amendments to the
Constitution by excluding Defendant’s Exhibits 81A,
82A, 83A, and 84A. 15 Specifically, Petitioner contends
that the exclusion of the four videos contained within
Defendant’s Exhibits 81A-84A violated his constitutional rights to present mitigating evidence during
capital sentencing proceedings under Lockett v. Ohio,
438 U.S. 586 (1978).
Defendant’s Exhibit 81A is a police interrogation
room recording of Petitioner within hours of turning
himself in. Petitioner asserts that it depicts him crying, disoriented, confused, and docile and respectful
to law enforcement. Defendant’s Exhibits 82A, 83A,
and 84A consist of three video- recorded interviews
between Petitioner and local media. In a similar
light, Petitioner asserts that these recordings depict
him crying and apologizing for killing his pregnant
girlfriend and unborn child, his girlfriend’s mother,
and his girlfriend’s ten-year-old little brother.
But after reviewing this first constitutional claim
for habeas corpus relief under a de novo standard, the
Court finds it utterly lacking any serious merit.
i. Legal Standard
The Supreme Court plurality in Lockett v. Ohio
held that a jury cannot be precluded from considering
as a mitigating factor “any aspect of a defendant’s
character or record and any circumstance of the offense that the defendant proffers as a basis for a sen15
Amend. Pet. at 9-40.
28a
tence less than death.” 438 U.S. 586, 604 (1978). On
the other hand, a trial court retains its inherent authority “to exclude, as irrelevant, evidence not bearing on the defendant’s character, prior record, or the
circumstances of his offense.” Id. at 604 n.12. While
the Supreme Court has since held that a jury cannot
be precluded from considering relevant mitigating evidence, Skipper v. South Carolina, 476 U.S. 1, 4
(1986), it has also clarified that “gravity has a place
in the relevance analysis, insofar as a trivial feature
of the defendant’s character or the circumstances of
the crime is unlikely to have any tendency to mitigate
the defendant’s culpability.” Tennard v. Dretke, 542
U.S. 274, 286 (2004). As such, not all purportedly mitigating evidence is relevant and therefore mandatory
for a jury to consider. See Bigby v. Stephens, 595 F.
App’x 350, 353 (5th Cir. 2014).
Supreme Court precedents confers upon a criminal
defendant “the right to present sentencers with information relevant to the sentencing decision and
oblige sentencers to consider that information in determining the appropriate sentence.” Kansas v.
Marsh, 548 U.S. 163, 175 (2006). But “[t]he thrust of
[the Supreme Court’s] mitigation jurisprudence ends
here.” Id. For the Lockett decision and its progeny
“stand only for the proposition that a State may not
cut off in an absolute manner the presentation of mitigating evidence.” Johnson v. Texas, 509 U.S. 350,
361 (1993) (cleaned up). Conversely, the incorporated
Eighth Amendment “does not deprive the State of its
authority to set reasonable limits upon the evidence a
defendant can submit, and to control the manner in
which it is submitted.” Oregon v. Guzek, 546 U.S. 517,
526 (2006); see, e.g., Johnson, 509 U.S. at 362; Buchanan v. Angelone, 103 F.3d 344, 349 (4th Cir. 1996)
(holding that a trial court’s exclusion of evidence pur-
29a
suant to a state hearsay rule did not violate the constitution because “the statements would have had only cumulative probative value”).
Furthermore, a trial court’s decision to exclude relevant mitigating evidence is subject to harmless error
review. Rhoades v. Davis, 914 F.3d 357, 367-69 (5th
Cir. 2019). Thus, in order to succeed on a mitigating
evidence exclusion claim, a petitioner must demonstrate to the federal habeas court that the alleged error had a “substantial and injurious effect or influence” on the outcome of the petitioner’s criminal trial.
Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993).
ii Exclusion of Defendant’s Exhibits 81A-84A
At the outset, Defendant’s Exhibits 82A–84A were
properly excluded for being littered with hearsay in
Petitioner’s statements, media reporters’ commentary, victims’ family statements, and a neighbor’s
commentary regarding the murders. See Simmons v.
Epps, 654 F.3d 526, 542-44 (5th Cir. 2011) (holding
that the state court’s decision to exclude for hearsay
purportedly mitigating videotape evidence was not
unreasonable). Petitioner did not offer versions of
these videotape exhibits that omitted the hearsay
contained therein. 16 The state trial court was therefore correct in concluding that Defendant’s Exhibits
82A-84A were excludable. See Tex. R. Evid. 801.
Relying on the Supreme Court’s decision in Green
v. Georgia, 442 U.S. 95 (1979), Petitioner retorts that
“evidentiary rules cannot be applied ‘mechanistically
to defeat the ends of justice.” But the Fifth Circuit
has recognized that the reach of Green is actually
“quite limited.” Simmons, 654 F.3d at 543. It certainly does not reach the excluded evidence at issue here.
16
See 45 R.R. 21-24.
30a
Unlike in Green, where the trial court excluded evidence that another person confessed to the crime, the
“probative value of” Defendant’s Exhibits 82A-84A
excluded in this case “pales in comparison.” Id. Petitioner’s jailhouse interviews with local media lack
substantial indicia of reliability. See id. As the Fifth
Circuit panel in Simmons noted in its decision to uphold the exclusion of a videotape created by a petitioner expressing remorse, Petitioner’s expression of
remorse “was less of a statement against interest, because [Petitioner] did not directly confess to the crime
and may have had ulterior motives to create the
tape.” Id. at 544. Neither were Petitioner’s media hits
the sole avenue for him to proffer evidence of remorse, as himself and other defense witnesses testified at great length to Petitioner’s remorsefulness.
See id. Consequently, Petitioner fails to demonstrate
that the state trial court improperly excluded Defendant’s Exhibits 82A-84A.
As for Defendant’s Exhibit 81A, Petitioner argues
that it was improper for the state trial court to “exclude the recording of [Petitioner] while not being interviewed but being detained at the Fort Worth Police Department contained in the Defendant’s Exhibit
[81A].” 17 Petitioner maintains that the entire six-hour
segment between jailhouse interviews should have
been admitted because it was relevant mitigating evidence of his mental condition briefly after committing the murder spree. The Court disagrees and finds
that the state trial court’s decision to exclude the contested six-hour segment of the 81A videotape, along
with the entirety of the 82A-84A videotapes, was
harmless.
Petitioner did not raise the argument during trial
17
45 R.R. 20.
31a
that Defendant’s Exhibits 81A-84A were admissible
to show remorsefulness, and therefore forfeited any
such argument to begin with. In the State of Texas, a
specific articulation of the legal basis of an evidentiary proffer is necessary to preserve error. See Golliday v. State, 560 S.W.3d 664, 669-70 (Tex. Crim.
App. 2018). On direct appeal, the state appellate
court found that Petitioner failed preserve this claim.
Wells, 611 S.W.3d at 422 (citing Tex. R. App. P. 33.1).
In the context of this federal habeas proceeding, even
on de novo review, the Court is bound to accept this
finding as a matter of state law. See Buntion v.
Lumpkin, 982 F.3d 945, 951 (5th Cir. 2020) (expounding that “a basic tent of federal habeas review is that
a federal court does not have license to question a
state court’s finding of procedural default . . . based
upon an adequate and independent state ground.”
(cleaned up)); Bradshaw v. Richey, 546 U.S. 74, 76
(2005) (per curiam) (“We have repeatedly held that a
state court’s interpretation of state law, including one
announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus.”).
The state appellate court’s finding constitutes an independent and adequate bar to Petitioner’s claim in
this Court that the excluded portions of Defendant’s
Exhibits 81A-84A prevented Petitioner from presenting mitigating evidence of his remorse. See Scheanette v. Quarterman, 482 F.3d 815, 823 (5th Cir. 2007).
Petitioner makes no effort to rebut Fifth Circuit precedent holding that Texas’ contemporaneous objection
rule constitutes an independent and adequate state
ground for precluding his claim. See Scheanette, 482
F.3d at 823.
Accordingly, the Court holds that this claim does
not entitle Petitioner to habeas relief from his conviction and sentence and should therefore be DENIED.
32a
2. Due Process of Law Deprivation by Prosecutorial Misconduct (Claim Six)
Petitioner’s sixth claim alleges that the prosecution for the People of the State of Texas deprived him
of due process of law guaranteed under the Fourteenth Amendment. 18 In support of this prosecutorial
misconduct claim, Petitioner specifically asserts that
in closing arguments to the jury during the punishment phase of trial, the state’s representatives knowingly made: false statements regarding Petitioner’s
lack of remorse by arguing that Petitioner “never
shed a tear” over the murders; and misleading discussion of the incident where Regin Hooks stabbed
Petitioner by arguing that Petitioner was the aggressor. The Court is firmly unpersuaded by any of this.
i. Legal Standard
To successfully make out a due process of law deprivation in this context, the petitioner must first establish that the prosecution’s argument was improper. See Watts v. Quarterman, 448 F. Supp. 2d 786,
814-15 (W.D. Tex. 2006) (collecting cases). A proper
prosecutorial jury argument consists of either: (1) a
summation of the evidence; (2) a reasonable deduction from the evidence; (3) a response to an opponent's argument; or (4) a plea for law enforcement.
Hughes v. Quarterman, 530 F.3d 336, 347 (5th Cir.
2008); Ward v. Dretke, 420 F.3d 479, 497 (5th Cir.
2005). During closing arguments in particular, the
prosecution “is not prohibited from reciting to the jury those inferences and conclusions she wishes the
jury to draw from the evidence so long as those inferences are grounded upon evidence.” Dowthitt v. Johnson, 230 F.3d 733, 755 (5th Cir. 2000) (cleaned up).
18
Amend. Pet. at 107-09.
33a
Rather, a prosecutorial remark is reasonable and
within constitutional boundaries for merely “requesting the jury to draw a desired conclusion based upon
the evidence.” Id.
But even if the petitioner identifies certain improper remarks elicited by the prosecution, the fact
that the remarks “were undesirable or even universally condemned” is insufficient on its own to establish a constitutional violation. Darden v. Wainwright,
477 U.S. 168, 181 (1986) (cleaned up). The dispositive
inquiry is “whether the prosecutors’ comments ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.’” Id. (quoting
Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974));
see Parker v. Matthews, 567 U.S. 37, 45 (2012) (per
curiam). To clear the persuasive hurdle of prejudice
rendering a trial fundamentally unfair, Petitioner
bears the burden of showing that the prosecution’s
remarks “evince either persistent and pronounced
misconduct or . . . the evidence was so insubstantial”
that a conviction would not have resulted but for the
remarks. Harris v. Cockrell, 313 F.3d 238, 245 (5th
Cir. 2002) (cleaned up). Supreme Court precedent
further dictates that a writ of habeas corpus shall not
warrant based on a mere trial error unless the alleged error had a “substantial and injurious effect or
influence” on the verdict issued against the petitioner. Brecht, 507 U.S. at 637.
Even under a de novo standard of review, Petitioner falls well short of his persuasive hurdle on this
constitutional due process claim.
ii. Statements on Lack of Remorse
Petitioner’s first allegation in support of this claim
is that during the punishment phase of trial, the
prosecution falsely asserted in closing arguments
34a
that Petitioner “never shed a tear, not a single tear”
in his testimony about personally seeing the victims’
dead bodies at the scene of the murder spree. 19
But the Court finds this portion of the prosecution’s closing arguments to be wholly proper. For the
reference to Petitioner’s failure to “shed a tear” was a
mere reminder to the jury of Petitioner’s own in-court
testimony provided to the jury earlier in the trial.
The prosecution here specifically referenced Petitioner’s testimony in the punishment phase of the capital
murder trial to support its argument that Petitioner
lacked remorse for the murders. Based on the Court’s
review of the record containing Petitioner’s punishment phase testimony, the prosecution’s supporting
reference to that testimony was an entirely fair and
accurate “summation of the evidence.” Watts, 448 F.
Supp. 2d at 815-16. There is nothing in the record to
suggest that Petitioner cried or otherwise shed a single tear while testifying directly before the jury about
observing first-hand the slain bodies of his pregnant
girlfriend Chanice, her mother Annette, and her
younger brother E.M. 20
Further than that, Petitioner’s punishment phase
testimony produced an exchange on cross- examination that affirmatively supported the closing argument on remorsefulness put forth by the prosecution:
Q. You know, you didn’t cry a single time when you
described shooting anybody.
A. You can – you can say that, but –
Q. Well, that's true. You didn't.
19
Amend. Pet. at 108 (citing 46 R.R. at 98:3-9).
20
See 45 R.R. 50-194.
35a
A. I was hurting. It’s – you can say that. 21
The record before the Court therefore indicates
that the prosecution’s lack-of-remorsefulness argument in reference to Petitioner’s first-hand account of
the murders merely “request[ed] the jury to draw a
desired conclusion based upon the evidence.”
Dowthitt, 230 F.3d at 755. As such, the Court finds
this portion of the prosecution’s closing argument to
be in perfect harmony with the due process of law
owed to Petitioner.
iii. Discussion of the Hooks Incident
Petitioner’s second allegation in support of this
claim is that during the punishment phase of trial,
the prosecution also misleadingly discussed in closing
argument the incident where “[Petitioner] gets involved in an assault where Regin Hooks has enough
of it, and she cuts him with a knife.” 22 Specifically,
Petitioner contends that the prosecution misleadingly
asked “[w]hat was going on that this woman is so
scared of [Petitioner] that she cuts him with a knife?”
and misleadingly asserted that this incident “tells
[the jury] how terrified she was of [Petitioner].” 23
Here, Petitioner similarly fails to show how this
portion of the closing arguments amounted to anything other than an entirely proper prosecutorial argument to address to a jury. In presenting this line of
argument in its closing, the prosecution simply drew
upon Petitioner’s punishment phase testimony and
other supporting evidence in the record. Earlier in
the trial, Petitioner had briefly testified that Hooks
21
45 R.R. 162 (emphasis added).
22
Amend. Pet. at 108 (citing 46 R.R. at 87:4-9).
23
Amend. Pet. at 108 (citing 46 R.R. at 87:6-8).
36a
was charged with aggravated assault with a deadly
weapon for slashing him with a knife, but that Petitioner himself was not arrested because of the incident. 24 Petitioner was then questioned on crossexamination about the defense investigator’s notes
describing the same incident. 25 The notes stated that
Hooks demanded compensation after engaging in
sexual intercourse with Petitioner, to which Petitioner had refused. The notes also included a statement
by Hooks that Petitioner had “‘always been abusive’—
beating on her.” 26 Petitioner acknowledged the notes
indicating Hooks’s report of his abuse, but denied ever actually abusing Hooks and further accused her of
lying. 27
The prosecution pointed out on crossexamination that, contrary to the testimony of defense witnesses that Petitioner had an issue with
controlling anger and violence, Petitioner was perfectly capable of controlling these impulses when
Hooks cut him with a knife. 28 On top of this, the trial
record was rife with evidence of Petitioner insistently
denying nearly every assault and domestic abuse incident he allegedly committed, including those that
Petitioner himself pleaded guilty to and were photographically documented. 29
In light of this trial record, the above-referenced
segment of the prosecution’s closing argument at issue here constituted an appropriate recitation of the
“inferences and conclusions [the prosecution] wishe[d]
24
45 R.R. 85–86.
25
45 R.R. 150–52; S.X. 200.
26
Id.
27
45 R.R. 152.
28
45 R.R. 152–53.
29
S.X. 180, 182, 185–186, 189–92.
37a
the jury to draw from the evidence” of Petitioner’s
pattern of violence and abuse toward women.
Dowthitt, 230 F.3d at 755. In doing so, the argument
itself made a perfectly “reasonable deduction from the
evidence,” as summarized above, that Petitioner had
minimized, misled, or even lied about the extent of
his abusive and violent behavior toward Hooks.
Hughes, 530 F.3d at 347; Watts, 448 F. Supp. 2d at
814-16.
Neither does Petitioner have any legitimate basis
for contending that his capital murder trial somehow
became “fundamentally unfair” on account of the
prosecution’s closing argument on the Hooks incident.
Darden, 477 U.S. at 178-183; Brecht, 507 U.S. at 637.
For one thing, the jury was made aware of the fact
that Hooks had been charged as a result of the slashing incident while Petitioner had not. 30 Moreover,
well beyond Hooks’s report of Petitioner’s abuse, the
jury was presented with other voluminous evidence of
Petitioner’s pattern of physical abuse toward his girlfriends that was far more detrimental to Petitioner’s
case—including that his pattern of abuse ultimately
culminated in the grisly killings of his pregnant girlfriend and unborn child, his girlfriend’s mother, and
his girlfriend’s little brother. See Wells, 611 S.W.3d at
419-20. When juxtaposed against this mountain of
aggravating evidence implicating Petitioner’s domestic violence and abuse habits toward women, Petitioner cannot seriously contend that the brief prosecutorial commentary on the Hooks incident inflicted a
“substantial and injurious effect or influence” on the
jury’s verdict sentencing him to death. Brecht, 507
U.S. at 637. As with the lack- of-remorsefulness argument, the Court similarly finds this portion of the
30
45 R.R. 86.
38a
prosecution’s closing argument to be in perfect harmony with the due process of law owed to Petitioner.
Accordingly, the Court holds that this claim does
not entitle Petitioner to habeas relief from his conviction and sentence and should therefore be DENIED.
3. Due Process of Law Deprivation by Expert Trial Testimony (Claim Seven)
Petitioner’s seventh constitutional claim postulates
that trial counsel’s presentation of and the prosecution’s reliance on genetic evidence deprived him of his
due process of law guarantee under the Fourteenth
Amendment. 31 Specifically, Petitioner contends that
the introduction of and reliance upon expert opinion
testimony that Petitioner is genetically prone to violence constituted a violation of his right to receive a
criminal sentence based on reliable information and
not immutable genetic makeup. Upon a de novo review of Petitioner’s seventh constitutional claim for
relief, the Court finds it bordering on frivolous.
i. Reliable Information
Petitioner first argues the genetic evidence violated his due process right to be criminally sentenced
based on reliable information. 32 Petitioner relies on
the Supreme Court’s opinion in Townsend v. Burke
for the proposition that a sentence cannot be based on
inaccurate or unreliable information. 334 U.S. 736,
741 (1948). But that reliance is inapposite here. In
Townsend, the Supreme Court found a defendant was
deprived of due process of law where he was without
counsel and the trial court predicated his sentencing
31
Amend. Pet. at 109-13.
Amend. Pet. at 109-10 (citing Townsend v. Burke, 334 U.S.
736, 741 (1948)).
32
39a
on criminal charges for which he was found not
guilty. Id. at 740-41. It is plainly obvious that trial
counsel’s calculated decision to present the genetic
evidence in Petitioner’s case bears no resemblance to
the factual circumstances at play in Townsend. Here,
the crux of Petitioner’s claim is a belated disagreement with trial counsel’s strategy. This is insufficient
to show he was deprived of a fair sentencing process.
See United States ex rel. Welch v. Lane, 738 F.2d 863,
864–65 (7th Cir. 1984) (a defendant has “a right to a
fair sentencing process—one in which the court goes
through a rational procedure of selecting a sentence
based on relevant considerations and accurate information” (emphasis in original)).
Moreover, Petitioner fails to show Dr. Bernet’s testimony was inaccurate or unreliable. For the same
reasons that Petitioner fails to show that trial counsel was ineffective for presenting the genetic evidence, Petitioner cannot show that his sentence was
based on unreliable information. See State v. Yepez,
483 P.3d 576, 584 (N.M. 2021) (holding that the trial
court did not abuse its discretion in concluding that
“the scientific findings of low-activity MAOA genotypes moderating the effects of childhood maltreatment to increase the likelihood of antisocial and aggressive behavior in males satisfied the Daubert reliability factors”); People v. Adams, 336 P.3d 1223,
1241-42 (describing testimony of a forensic psychologist that “it had recently been shown that there is a
powerful association with severe antisocial behavior
later in life when childhood maltreatment combines
with the presence of an inherited type of gene, the 3repeat allele MAOA gene”). Moreover, Dr. Bernet
even conceded to the jury that not all studies confirmed the early research regarding the MAOA genet-
40a
ic variant. 33 Petitioner simply fails to show the jury
sentenced him based on unreliable or false evidence.
See Renteria v. Davis, 814 F. App’x 827, 833–34 (5th
Cir. 2020) (finding Townsend inapplicable where a
petitioner does not demonstrate that his sentence
“was predicated on inaccurate information”).
Petitioner’s claim might also be understood to arise
under the Eighth Amendment as incorporated
through the Fourteenth. If such is the case, the Fifth
Circuit expounded that where the Supreme Court has
discussed the Eighth Amendment’s heightened reliability requirement, “it is not talking about the appropriate sources for information introduced at sentencing or even, more generally, about the reliability of
the evidence.” United States v. Fields, 483 F.3d 313,
336 (5th Cir. 2007). Rather, it has instead focused on
the necessity of delineating the types of offenses for
which capital punishment is appropriate and the
need for individualized sentencing. Id. To that end,
“the need for greater reliability in the selection of an
appropriate punishment entails not stricter evidentiary rules, but the assurance of ‘individualized sentencing’ once a defendant is eligible for the death
penalty.” Id. (emphasis in original) (citing Woodson v.
North Carolina, 428 U.S. 280, 304 (1976)). Therefore,
assuming arguendo that Petitioner has raised an incorporated Eighth Amendment claim here, he does
not demonstrate how trial counsel’s presentation of
the genetic evidence contravened his constitutional
safeguard against “cruel and unusual” punishment.
U.S. CONST. AMEND. VIII.
As such, the Court finds no merit to this allegation
in support of the due process claim.
33
43 R.R. 104–05.
41a
ii. Immutable Genetic Makeup
Petitioner also claims trial counsel’s presentation
of the genetic evidence violated his due process right
to not be criminally sentenced based on his immutable characteristics, i.e., his race and genetics. 34 Petitioner’s reliance on Buck v. Davis is misguided, as the
decision has no bearing on the due process attack advanced by Petitioner against trial counsel’s presentation of Dr. Bernet’s testimony. 580 U.S. 100 (2017).
Buck involved an IAC challenge to trial counsel’s actions, not a due process attack leveled against the
fairness of the entire proceedings. See id. at 118. Furthermore, Petitioner’s allegation boils down to nothing more than mere post-hoc disagreement with trial
counsel’s strategy, which does not equate to a deprivation of fair sentencing proceedings. Lane, 738 F.2d
863, 864-65. Petitioner’s attempt to Monday morning
quarterback his trial counsel is not a cognizable due
process claim.
Assuming arguendo that the Court has been presented with a legitimate constitutional claim, the allegations underlying it are still groundless. For one,
Petitioner fails to show he was harmed by the genetic
evidence. Petitioner hangs his hat on mere juror declarations35 that are inadmissible under the Federal
Rules of Evidence. See FED. R. EVID. 606(b). Additionally, Petitioner’s claim is barred by Teague nonretroactivity doctrine because no precedent constitutionally proscribes the presentation of genetic information along the same lines as what was presented
to the jury here. The Court declines the invitation to
announce a “new rule of constitutional law” for the
Amend. Pet. at 110-11 (citing Buck v. Davis, 580 U.S. 100, 12325 (2017)).
34
35
Pet. at 111–12.
42a
sake of bailing Petitioner out of an otherwise fair capital sentencing. Caspari, 510 U.S. at 389-390; Teague,
489 U.S. at 301. Thus, the Court does not find any
merit to this allegation underlying the due process
claim, either.
Accordingly, the Court holds that this claim does
not entitle Petitioner to habeas relief from his conviction and sentence and should therefore be DENIED.
4. Constitutionality of Capital Punishment
& Post-Conviction System (Claim Eight)
Petitioner raises an eighth claim for habeas relief
that seeks to declare the entire system for capital
sentencing and post-conviction relief in the State of
Texas “unconstitutional under the Eighth and Fourteenth Amendments.” 36 Petitioner puts forth a whole
host of underlying challenges in support of this penultimate claim. The Court finds none of them remotely convincing.
i. Capital Sentencing Special Issues
Under this umbrella, Petitioner first argues that
key terms of the Texas capital sentencing special issues are unconstitutionally vague and unconstitutionally narrow the scope of mitigating evidence. See
Tex. Code Crim. Proc. art. 37.071. 37 Specifically, Petitioner contends that the lack of statutory definitions
for terms such as “probability” and “criminal acts of
violence” make the future dangerousness special issue unconstitutionally vague, while the statutorily
prescribed scope of evidence in the mitigation special
issue—i.e., evidence “reducing the defendant’s moral
blameworthiness”—unconstitutionally precludes the
36
Amend. Pet. at 114-17.
37
Amend. Pet. at 114-15.
43a
sentencing authority’s consideration of relevant mitigating evidence. Petitioner’s state habeas petition
raised IAC claims for trial and appellate counsel’s
failure to challenge the future dangerousness special
issue and trial counsel’s failure to challenge the mitigation special issue. 38 Petitioner did not otherwise
raise constitutional challenges to these special issues
as a separate standalone claim. According to Petitioner, it was objectively unreasonable and prejudicial for trial and appellate counsel to have conceded
these issues, and the state habeas court’s findings to
the contrary were unreasonable or contrary to clearly
established federal law. See 28 U.S.C. § 2254(d)(1).
The Court finds no merit to these assertions.
For starters, the Fifth Circuit has repeatedly rejected constitutional vagueness attacks on the future
dangerousness special issue terms in Texas’s capital
sentencing scheme. See, e.g., Sprouse v. Stephens, 748
F.3d at 622–23 (5th Cir. 2014) (denying a constitutional-vagueness challenge to the terms “probability,”
“criminal acts of violence,” and “continuing threat to
society” in the Texas capital sentencing charge);
Paredes v. Quarterman, 574 F.3d 281, 294 (5th Cir.
2009) (holding that the terms “probability,” “criminal
acts of violence,” and “continuing threat to society”
were not unconstitutionally vague); Turner v. Quarterman, 481 F.3d 292, 299–300 (5th Cir. 2007) (rejecting claims that the terms “probability,” “criminal acts
of violence,” and “continuing threat to society” were
so vague as to preclude a capital sentencing jury’s
consideration of relevant mitigating evidence). Secondly, the Fifth Circuit has affirmed the constitutionality of the mitigation special issue in Texas’s
capital sentencing scheme. See Hummel v. Davis, 908
38
State Pet. at 327-28, 331, 349-350.
44a
F.3d 987, 994 (5th Cir. 2018). So too, the Supreme
Court specifically commended Texas’s current capital
sentencing scheme for its “brevity and clarity” and its
inclusion of a “clearly drafted catchall instruction on
mitigating evidence.” Penry v. Johnson, 532 U.S. 782,
802– 03 (2001). And on top of that, the Fifth Circuit
has firmly repudiated the contention that—based on
the scope of the evidence prescribed by the mitigation
special issue—Texas’s capital sentencing scheme unconstitutionally precludes from consideration categories of evidence that a sentencer may consider to be
relevant mitigating evidence. See Sprouse, 748 F.3d
at 622; Blue v. Thaler, 665 F.3d. 647, 663–68 (5th Cir.
2011).
Of further noteworthiness is that Petitioner’s conviction and sentence became final under Teague no
later than February 17, 2021. This reflects the date
in which Petitioner’s time window for filing a certiorari petition with the U.S. Supreme Court had expired, which was the ninety-first day following the
affirmation of his conviction and sentence by the
Texas Court of Criminal Appeals on November 18,
2020. See Caspari, 510 U.S. at 390; Rule 13.1, Rules
of the Supreme Court of the United States (providing
that the deadline for filing a certiorari petition is ordinarily 90 days from the date of the judgment for
which certiorari review is sought).
Since controlling federal law affirms the constitutional validity of the future dangerousness and mitigation special issues, and no clearly established Supreme Court precedent points in the opposite direction as of the date of Petitioner’s final conviction and
sentence, Teague bars this Court from accepting Petitioner’s challenges to the Texas capital sentencing
special issues. See Scheanette v. Quarterman, 482
F.3d 815, 827 (5th Cir. 2007) (citing Teague v. Lane,
45a
489 U.S. 288 (1989)). This is so regardless of whether
they are packaged within an IAC claim or brought as
an independent standalone claim against the entire
capital sentencing scheme. And even assuming arguendo that these de novo findings are not fatal to
Petitioner’s challenges, Petitioner himself even concedes that binding circuit precedent forecloses them
on the merits. 39
The Court therefore finds that Petitioner’s constitutional attacks on the Texas capital sentencing special issues are baseless.
ii. Twelve/Ten Rule
Petitioner next argues that the twelve/ten rule in
Texas’s capital sentencing scheme is unconstitutional. See Tex. Code Crim. Proc. art. 37.071. 40 Specifically, Petitioner contends that the rule is invalid for inclusion of an instruction to reach a unanimous or tenperson vote on special issues and for want of an instruction on the effect of a hung jury. Petitioner’s
state habeas petition raised an IAC claim for appellate counsel’s failure to challenge the twelve/ten rule
on appeal. 41 Petitioner did not otherwise raise an independent constitutional claim along these lines. Petitioner maintains that it was objectively unreasonable and prejudicial for appellate counsel to not have
raised this issue on appeal, and that the state habeas
court’s contrary finding was unreasonable or contrary
to clearly established federal law. See 28 U.S.C. §
2254(d)(1). But even under another de novo inquiry,
the Court finds no merit to this, either.
Amend. Pet. at 114 n. 38 (citing Beazley v. Johnson, 242 F.3d
248 (5th Cir. 2001)).
39
40
Amend. Pet. at 115.
41
State Pet. at 360-68.
46a
To begin with, the Fifth Circuit has already rejected this exact constitutional attack on the twelve/ten
rule time after time again. See Sprouse, 748 F.3d at
623; Blue, 665 F.3d at 669–70; Druery v. Thaler, 647
F.3d 535, 542-45 (5th Cir. 2011); see also Johnson v.
Lumpkin, 593 F. Supp. 3d 468, 504-08 (N.D. Tex.
2022), aff’d, 74 F.4th 334 (5th Cir. 2023). A fortiori,
the Supreme Court has also disposed of carbon-copy
arguments to those put forth by Petitioner, albeit in
the federal capital sentencing regime. See Jones v.
United States, 527 U.S. 373, 381-84 (1999) (holding
that the Constitution does not require the provision
of a capital sentencing jury instruction on the effect of
a “breakdown in the deliberative process”). In a clear
rebuke of Petitioner’s precise contention here, the
Supreme Court posited that the omission of such an
instruction does not mislead capital sentencing jurors
regarding their role in the sentencing process. See id.
Rather, the inclusion of such an instruction would instead serve to undermine the State of Texas’s “strong
governmental interest” in having Petitioner’s sentencing jury “express the conscience of the community on the ultimate question of life or death.” Id.
(cleaned up). Petitioner’s reliance on Mills v. Maryland, 486 U.S. 367 (1988), McKoy v. N.C., 494 U.S.
433 (1990), and Caldwell v. Mississippi, 472 U.S. 320
(1985) is inapposite and of no moment in this context,
either. For binding circuit precedent has categorically
disposed of all attempts at shoehorning these holdings into meritorious Eighth and Fourteenth
Amendment challenges to the Texas twelve/ten rule.
See Johnson, 593 F. Supp. 3d at 505-06, aff’d, 74
F.4th 334 (collecting and discussing cases).
Upon review, the Court finds that federal law
clearly establishes the constitutionality of the Texas
twelve/ten rule with respect to its instruction on
47a
reaching a unanimous or ten-person vote on special
issues and its lack of an instruction on the result of a
hung jury. Bereft of any clearly established supporting authorities, Petitioner’s argument to the contrary
would have the Court “adopt a new rule of constitutional criminal procedure” in order for the petitioned
habeas corpus writ to issue. Blue, 665 F.3d at 670.
Under the non-retroactivity principle of Teague, then,
this challenge to Texas’s capital sentencing scheme is
similarly barred. See id. (citing Teague v. Lane, 489
U.S. 288 (1989)). These de novo findings are also dispositive of Petitioner’s argument that the state habeas court unreasonably denied his IAC claim against
appellate counsel, which is based on the same underlying challenge.
As such, the Court finds Petitioner’s constitutional
attack on the Texas twelve/ten rule to be meritless.
iii. Application of the Death Penalty
Petitioner puts forth yet another argument against
the validity of Texas’s capital sentencing scheme—
this time that Texas administers the scheme with arbitrariness and caprice. 42 Specifically, Petitioner contends that the death penalty is issued arbitrarily
along geographic and racial lines within the State in
violation of the constitutional requirement that capital sentencing schemes be “‘controlled by clear and
objective standards so as to produce nondiscriminatory application.’” 43 Petitioner’s state habeas petition raised an IAC claim based on appellate
counsel’s failure to bring an arbitrary application
challenge on appeal. 44 Petitioner did not otherwise
42
Amend. Pet. at 115.
43
Id. (quoting Gregg v. Georgia, 428 U.S. 153, 198 (1976)).
44
State Pet. at 398-411.
48a
raise this as a standalone constitutional claim. Once
again, Petitioner maintains it was objectively unreasonable and prejudicial for appellate counsel to not
have raised this issue on appeal, while the state habeas court’s opposite finding was unreasonable or
contrary to clearly established federal law. See 28
U.S.C. § 2254(d)(1). But under de novo review once
again, the Court finds this to be without arguable
merit.
At the outset, the Fifth Circuit and Supreme Court
do not recognize a constitutional prohibition against
the imposition of a capital sentence merely because
the capital punishment regime more broadly is enforced against capital murders in a geographically
disparate manner. Allen v. Stephens, 805 F.3d 617,
628-631 (5th Cir. 2015), abrogated on other grounds
by Ayestas v. Davis, 138 S. Ct. 1080, 1093 (2018)
(“[N]o Supreme Court case has held that the Constitution prohibits geographically disparate application
of the death penalty due to varying resources across
jurisdictions.”). Conversely, the Supreme Court has
affirmatively acknowledged that capital punishment
is constitutionally permissible notwithstanding its
lack of unform application brought about by varying
prosecutorial discretionary considerations and law
enforcement resources and capabilities. Id. (citing
McCleskey v. Kemp, 481 U.S. 279, 307 n.28 (1987)).
With respect to racially discriminatory application
of capital punishment, the Fifth Circuit and Supreme
Court require Petitioner to show “‘that the decisionmakers in his case acted with discriminatory
purpose.’” Kelly v. Lynaugh, 862 F.2d 1126, 1135 (5th
Cir. 1988) (quoting McCleskey, 481 U.S. at 291-98). In
this regard, “alleged racial discrimination in the decision to prosecute a criminal defendant for capital
murder and in the decision to impose a sentence of
49a
death are essentially complaints of selective prosecution.” Johnson, 593 F. Supp. 3d at 509, aff’d, 74 F.4th
334 (citing Broadnax v. Davis, No. 3:15-CV-1758-N,
2019 WL 3302840, at *14 (N.D. Tex. July 23, 2019)
(Godbey, J.), aff’d sub nom. Broadnax v. Lumpkin,
987 F.3d 400 (5th Cir. 2021)). A selective prosecution
inquiry “necessarily begin[s] with a presumption of
good faith and constitutional compliance” on the part
of the decisionmakers. Broadnax, 2019 WL 3302840,
at *14, aff’d sub nom., 987 F.3d 400 (citing United
States v. Armstrong, 517 U.S. 456, 463-64 (2006)).
The general rule of thumb is that so long as there
was “probable cause to believe that [Petitioner] committed an offense defined by statute, the decision
whether or not to prosecute, and what charge to file”
presumptively rested within the decisionmaker’s discretion. Bordenkircher v. Hayes, 434 U.S. 357, 364
(1978). Thus, if Petitioner’s crime fits within Texas’s
definition of capital murder and that definition is
constitutionally sound, “the conscious exercise of
some selectivity in enforcement is not in itself a federal constitutional violation” unless the selection was
“deliberately based upon . . . race.” Oyler v. Boles, 368
U.S. 448, 456 (1962).
Here, the killing spree committed by Petitioner
constitutes a murder crime for which the Constitution of the United States and the laws of the State of
Texas sanction capital punishment. See McCleskey,
481 U.S. at 297. There can be no doubt, therefore,
that the decision to pursue and impose the death
penalty against Petitioner fell squarely within the
decisionmakers’ legitimate discretion here. See Bordenkircher, 434 U.S. at 364; Oyler, 368 U.S. at 456.
Petitioner then fails to rebut this “presumption of
good faith and constitutional compliance” on the part
of the prosecutorial and sentencing authorities in-
50a
volved in his case. Broadnax, 2019 WL 3302840, at
*14, aff’d sub nom., 987 F.3d 400. Petitioner proffers
no evidence and alleges no specific facts to suggest
that any racially discriminatory motive or purpose
played a role in the decisions to pursue a capital
murder prosecution and impose a capital sentence
against him for a murder spree that took the lives of
a pregnant mother and her baby, a mother, and a
ten-year-old child. See Broadnax v. Lumpkin, 987
F.3d 400, 414 (5th Cir. 2021); Johnson, 593 F. Supp.
3d at 509, aff’d, 74 F.4th 334. Instead, Petitioner’s argument on this front is altogether conclusory. Consequently, Petitioner fails to establish that the decisionmakers in his case arbitrarily applied Texas’s
capital sentencing scheme on the basis of race. See
Johnson, 593 F. Supp. 3d at 509-511, aff’d, 74 F.4th
334; White v. Thaler, 522 F. App’x 226, 235 (5th Cir.
2013); Kelly, 862 F.2d at 1135.
Absent any on-point Supreme Court precedent to
support this particular challenge to Texas’s capital
sentencing scheme, it is precluded under Teague for
asking the Court “adopt a new rule of constitutional
criminal procedure.” Blue, 665 F.3d at 670. These de
novo findings are also dispositive of Petitioner’s argument that the state habeas court unreasonably denied his IAC claim against appellate counsel, which is
based on the same underlying challenge.
As a result, the Court finds no arguable merit to
Petitioner’s constitutional attack on the application of
Texas’s capital sentencing scheme.
iv. Post-Conviction Proceedings
Petitioner advances one last argument under the
umbrella of this substantive constitutional claim—
namely, that Texas’s state habeas proceedings unfairly deprived him of the opportunity to be heard in con-
51a
formance with due process of law. 45 Specifically, Petitioner contends that the state habeas court failed to
protect his due process rights by refusing to hold a
live evidentiary hearing. Reviewing de novo yet
again, the Court finds the allegation of a constitutionally defective post- conviction relief process to be
incognizable.
As the Fifth Circuit has recurringly affirmed, “[i]t
is axiomatic that infirmities in state habeas proceedings under state law are not a basis for federal habeas relief.” Wiley v. Epps, 625 F.3d 199, 207 (5th Cir.
2010) (citing Moore v. Dretke, 369 F.3d 844, 846 (5th
Cir. 2004) (per curiam)); Hallmark v. Johnson, 118
F.3d 1073, 1080 (5th Cir. 1997). The reasoning behind this well-entrenched principle is that an attack
on the validity of a state habeas proceeding “is an attack on a proceeding collateral to the detention and
not the detention itself,” and thus has no bearing on
the validity of the underlying state conviction and
sentence. Rudd v. Johnson, 256 F.3d 317, 319- 320
(5th Cir. 2001). The other main reason is that “a state
has no constitutional duty to provide post-conviction
remedies” in the first place. Millard v. Lynaugh, 810
F.2d 1403, 1410 (5th Cir. 1987). Conversely then, federal habeas courts “look only to the trial and direct
appeal” proceedings at the state level for potential
constitutional infirmities. Duff–Smith v. Collins, 973
F.2d 1175, 1182 (5th Cir. 1992).
Under the same controlling authorities, there can
be no doubt that a constitutional due process attack
on a state’s post-conviction relief process falls squarely within this categorical bar to federal habeas corpus
relief. See Kinsel v. Cain, 647 F.3d 265, 273, n. 23
(5th Cir. 2011) (applying the “no state habeas infirmi45
Amend. Pet. at 116-17.
52a
ties” rule to preclude federal habeas review of a due
process claim against a state appellate court’s postconviction proceedings); Hallmark, 118 F.3d at 1080
(“Insofar as [petitioner] raises a due process challenge to the state habeas proceedings, his claim fails
because infirmities in state habeas corpus proceedings do not constitute grounds for relief in federal
court.” (citing Duff–Smith, 973 F.2d at 1182)). Even
more directly on point to the argument advanced
here, Fifth Circuit habeas panels have uniformly applied this categorical rule to dispose of procedural due
process claims predicated upon a state court’s failure
to hold a live evidentiary hearing on a post-conviction
application. See, e.g., Mathis v. Dretke, 124 F. App’x
865, 871-72 (5th Cir. 2005); Tercero v. Stephens, 738
F.3d 141, 147-49 (5th Cir. 2013); Rockwell v. Davis,
853 F.3d 758, 761 n. 5 (5th Cir. 2017).
Here, Petitioner himself concedes as much. 46 But
even assuming otherwise, this Court is nonetheless
bound by circuit precedent to defer to the state habeas court’s findings under the no state habeas infirmities rule. Ibid. Moreover, due process of law “does not
require a full trial on the merits” in the habeas context anyway, but merely that Petitioner has an “opportunity to develop his claim.” Rivera v. Quarterman, 505 F.3d 349, 358 (5th Cir. 2007). With this understanding, allegation that the state habeas court
trampled over his right to be heard collapses under
its own weight. Petitioner was able to submit thousands of pages of thorough briefing and supporting
exhibits throughout the state habeas process that the
state habeas court comprehensively reviewed and rejected. This was more than an “ample opportunity to
‘develop his claims’” in the state habeas proceedings.
46
Amend Pet. at 116 n. 39, 117.
53a
Rockwell v. Davis, 853 F.3d at 761 n. 5 (quoting Tercero, 738 F.3d at 148). In multiple facets then, Petitioner’s argument seeks a “new rule of constitutional
criminal procedure” that is Teague-barred. Blue, 665
F.3d at 670.
For the foregoing reasons, the Court finds that Petitioner’s constitutional attack on the post- conviction
relief process provided by Texas fails to raise a cognizable claim for relief.
Accordingly, the Court holds that this claim does
not entitle Petitioner to habeas relief from his conviction and sentence and should therefore be DENIED.
5. Constitutionality of Death Penalty (Claim
Nine)
Petitioner asserts that the death penalty itself is
“unconstitutional under the Eighth and Fourteenth
Amendments,” and thus the sentence should be entirely vacated on that basis. 47 The Court is wholly
unmoved by Petitioner’s ninth and final claim.
The Eighth Amendment provides that “cruel and
unusual punishments [shall not be] inflicted.” U.S.
CONST. AMEND. VIII. This was made applicable to the
States through the Fourteenth Amendment. See Robinson v. California, 370 U.S. 660, 666 (1962). It is
deeply enshrined in our legal tradition that “capital
punishment is constitutional” for the crime of murder. Baze v. Rees, 553 U.S. 35, 47 (2008) (citing Gregg
v. Georgia, 428 U.S. 153, 176-77 (1976)). For since
“the time of the adoption of the Constitution and the
Bill of Rights” and long beyond, execution has been a
widely accepted—and more often than not, the preferred—administration of justice for those convicted
of slaughtering innocent human life. See Glossip v.
47
Amend. Pet. at 117-18.
54a
Gross, 576 U.S. 863, 867-69 (2015); Gregg, 428 U.S. at
168-172, 176-78.
To that end, the Constitution “reserve[s] for the
people and their representatives” this determination
regarding the proper course of justice for murderers.
Bucklew v. Precythe, 139 S. Ct. 1112, 1122-23 (2019).
Following thousands of years of Western legal tradition, the people of the State of Texas have duly determined that under the law, Petitioner’s decision to
deliberately deprive other human beings of innocent
life within a single killing spree should render the
deprivation of his own. See TEX. PENAL CODE §§
19.03(a)(7), 19.02(b)(1). That is their prerogative under the Constitution. See Bucklew, 139 S. Ct. at 112223; Glossip, 576 U.S. at 869; Gregg, 428 U.S. 153.
Very simply then, even when reviewing de novo, Petitioner’s last-ditch attempt at preventing the justice
that is due falls entirely flat.
Accordingly, the Court holds that this claim does
not entitle Petitioner to habeas relief from his conviction and sentence and should therefore be DENIED.
6. Ineffective Assistance of Trial Counsel
(Claims Two, Three, & Five)
The second, third, and fifth claims in the Amended
Petition allege that trial counsel rendered ineffective
assistance in violation of Petitioner’s Sixth and Fourteenth Amendment rights. 48 In particular, Petitioner
contends that trial counsel: (1) conceded the future
dangerousness special issue; (2) failed to investigate
Petitioner’s post-traumatic stress disorder (“PTSD”),
mental health, history of childhood sexual abuse, and
background; (3) failed to present all available mitigating evidence; (4) failed to rebut the prosecution’s evi48
Amend. Pet. at 40-107.
55a
dence of mens rea with evidence that Petitioner suffered from PTSD and a psychotic break at the time of
his capital offense; (5) failed to challenge for cause or
exercise a peremptory challenge against a venire
member and eventual juror who could not serve impartially; (6) failed to offer and get the full and complete videotape recording of Defense Exhibit 84A admitted into the record; (7) made racially charged
comments about Petitioner during trial; and (8) rendered cumulative ineffective assistance.
The Court reviews all of Petitioner’s ineffective assistance allegations de novo in light of the evidence
presented during Petitioner’s capital murder trial
and sentencing, state direct appeal, and state habeas
corpus proceedings, as well as all novel evidence presented for the first time in federal habeas proceedings. For the reasons discussed at length below, none
of Petitioner’s complaints about the performance of
trial counsel satisfy the constitutional standard set
forth in Strickland v. Washington, 466 U.S. 668
(1984) under a de novo standard of review.
i. Legal Standard
To prevail on an ineffective assistance of counsel
claim, a petitioner bears the burden of demonstrating
that: (1) counsel’s performance was deficient; and (2)
the deficient performance prejudiced the petitioner’s
defense. Strickland v. Washington, 466 U.S. 668, 687
(1984).
(1) To satisfy the deficiency prong, a petitioner
must establish that counsel’s representation “fell below an objective standard of reasonableness.” Wiggins
v. Smith, 539 U.S. 510, 521 (2003). Counsel’s performance is objectively unreasonable where “no competent attorney” would have taken the action that counsel did. Premo v. Moore, 562 U.S. 115, 124 (2011). In
56a
order to meet his burden, a petitioner must overcome
the “strong presumption” of adequate assistance, i.e.,
that counsel’s conduct fell “within the wide range of
reasonable professional assistance.” Strickland, 466
U.S. at 689-90. (2) To satisfy the prejudice prong, a
petitioner must establish a “reasonable probability”
that, but for the objectively unreasonable conduct of
counsel, “‘the result of the proceeding would have
been different.’” Wiggins, 539 U.S. at 534 (quoting
Strickland, 466 U.S. at 694). A reasonable probability
is one that is “‘sufficient to undermine confidence in
the outcome’” of the proceeding at issue. Id. To
reemphasize, Strickland demands that courts supply
a substantial degree of deference to the reasoned professional judgments and decisions of trial counsel. See
id. at 523; Strickland, 466 U.S. at 690.
ii. Concession of Future Dangerousness Special
Issue
Insofar as Petitioner argues that his trial counsel
conceded future dangerousness by presenting evidence that Petitioner was genetically predisposed toward violence, Petitioner is in error. The state habeas
court found as a matter of fact, and the Court agrees
after an independent review of the entire record of
state proceedings, that Petitioner’s trial counsel did
not concede the future dangerousness special issue in
the punishment phase of the capital murder trial.
Petitioner’s trial counsel did present double-edged
evidence showing that Petitioner’s genetic makeup,
combined with Petitioner’s history of an abusive and
traumatic childhood, rendered Petitioner more likely
than other people to react violently in response to a
stressful situation. The state trial court excluded for
lack of scientific foundation the vast majority of the
defense’s proposed expert testimony on other genetic
aspects of the defense’s case in mitigation. Neverthe-
57a
less, trial counsel was able to present some evidence
demonstrating that these genetic factors in combination with childhood trauma reduced Petitioner’s moral blameworthiness for his horrific capital offense.
Generally, it is objectively reasonable for trial
counsel to make an informed decision on whether to
proceed with a particular strategy that has the potential for a double-edged outcome. See Mejia v. Davis,
906 F.3d 307, 316 (5th Cir. 2018) (informed decision
to forego a lesser- included offense instruction when
defendant was entitled to same); Chanthakoummane
v. Stephens, 816 F.3d 62, 70 (5th Cir. 2016) (informed
decision to not present testimony from defendant’s
family out of concern for opening the door to evidence
of gang affiliation and violent history); St. Aubin v.
Quarterman, 470 F.3d 1096, 1103 (5th Cir. 2006) (informed decision not to present evidence that could be
construed by jury as both mitigating and aggravating); Rector v. Johnson, 120 F.3d 551, 564 (5th Cir.
1997) (informed decision not to present evidence
showing the defendant suffered from child abuse,
family instability, poor education, low intelligence,
gunshot injuries, and family history of severe and
chronic mentally illness).
It cannot be overemphasized that Petitioner’ capital offense included fatally shooting a ten- year-old
boy repeatedly after already fatally shooting the boy’s
eight-month pregnant sister and their mother. There
was no evidence to suggest that Petitioner’s final victim, E.M., had engaged in any aggressive behavior
toward Petitioner at the time Petitioner fired multiple fatal shots directly into the ten-year-old body, including one to the head. Nor can the Court ignore the
fact that Chanice Reed’s unborn male child of eight
months had been declared viable at the time of his
death by the medical examiner testifying at Petition-
58a
er’s trial. Petitioner was thus responsible for taking
the lives of four innocent human beings on July 1,
2013.
The Court also finds that trial counsel presented a
substantial case in mitigation. In addition to the experts testifying to Petitioner’s genetic predisposition
for violence, the defense also presented numerous fact
and expert witnesses testifying to the unstable,
traumatic nature of Petitioner’s childhood upbringing. Trial counsel was restricted from presenting further mitigating evidence via Petitioner’s own express
directives. Specifically, Petitioner instructed trial
counsel not to proffer any evidence indicating either
that Petitioner had been the victim of multiple instances of childhood sexual abuse, or that Petitioner’s
daughter showed signs of emotional or mental problems (including acts of violence at school).
The Court finds that under the arduous circumstances surrounding Petitioner’s case, trial counsel’s
mitigation strategy on future dangerousness was objectively well-reasoned professional advocacy. Based
on that finding, this IAC claim satisfies neither
Strickland prong under a de novo examination and
thus does not warrant federal habeas relief.
iii. Failure to Investigate Petitioner’s PTSD &
Childhood Abuse
The Court finds that trial counsel thoroughly investigated Petitioner’s upbringing and became well
aware of his childhood history of instability and
traumatic abuse, including that he had been sexually
abused. Trial counsel also became well aware of Petitioner’s family history of emotional issues and mental
illness, including his mother’s extreme narcissism
and daughter’s emotional outburst at school. The expansive mitigation case actually presented at trial
59a
belies Petitioner’s claim that trial counsel failed to
adequately investigate his background.
Trial counsel cannot reasonably be faulted for failing to present evidence from Petitioner’s background
that would have been cumulative or duplicative of the
already-extensive mitigation
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